[Federal Register: March 12, 2008 (Volume 73, Number 49)]
[Rules and Regulations]
[Page 13367-13401]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr08-38]
[[Page 13367]]
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Part III
Department of Transportation
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Federal Highway Administration
Federal Transit Administration
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23 CFR Parts 771 and 774
49 CFR Part 622
Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic
Sites; Final Rule
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Federal Transit Administration
23 CFR Parts 771 and 774
49 CFR Part 622
[Docket No. FHWA-2005-22884]
RIN 2125-AF14 and 2132-AA83
Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and
Historic Sites
AGENCY: Federal Highway Administration (FHWA) and Federal Transit
Administration (FTA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule modifies the procedures for granting Section
4(f) approvals in several ways. First, the final rule 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, the final rule clarifies the
factors to be considered when selecting a project alternative in
situations where all alternatives would use some Section 4(f) property.
Third, the final rule establishes procedures for determining that the
use of a Section 4(f) property has a de minimis impact on the property.
Fourth, the final rule updates the regulation to recognize statutory
and common-sense exceptions for uses that advance Section 4(f)'s
preservation purpose, as well as the option of applying a programmatic
Section 4(f) evaluation. Fifth, the final rule moves the Section 4(f)
regulation out of the agencies' National Environmental Policy Act
regulation, ``Environmental Impact and Related Procedures,'' into its
own part with a reorganized structure that is easier to use.
DATES: Effective Date: April 11, 2008.
FOR FURTHER INFORMATION CONTACT: For FHWA: Diane Mobley, Office of the
Chief Counsel, 202-366-1366, 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 1200 New Jersey Avenue, SE., Washington, DC 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., for FHWA, and 9 a.m. to
5:30 p.m., e.t., for FTA, Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
This document, the notice of proposed rulemaking (NPRM) of July 27,
2006, at 71 FR 42611, and all comments received by the U.S. DOT Docket
Facility may be viewed through the Federal Docket Management System
(FDMS) at http://www.regulations.gov. The FDMS is available 24 hours
each day, 365 days each year. Electronic submission and retrieval help
and guidelines are available under the help section of this Web site.
An electronic copy of this document may be downloaded by using a
computer, modem, and suitable communications software, from the
Government Printing Office's Electronic Bulletin Board Service at (202)
512-1661. Internet users may reach the Office of the Federal Register's
home page at: http://www.archives.gov and the Government Printing
Office's Web site at: http://www.access.gpo.gov/nara.
Statutory Authority
The principal statutory authority for this rulemaking action is
Section 6009 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L.
109-59, Aug. 10, 2005, 118 Stat. 1144).
Background
Section 4(f) of the Department of Transportation Act of 1966 (Pub.
L. 89-670, 80 Stat. 931) \1\ prohibits the use of land of significant
publicly owned public parks, recreation areas, wildlife and waterfowl
refuges, and land of a historic site for transportation projects unless
the Administration (as defined in section 774.17 of this part) \2\
determines that there is no feasible and prudent avoidance alternative
and that all possible planning to minimize harm has occurred. Early
case law strictly interpreted Section 4(f), beginning with the Supreme
Court's decision in Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402 (1971) (Overton Park). In Overton Park, the Court articulated
a very high standard for compliance with Section 4(f), stating that
Congress intended the protection of parkland to be of paramount
importance. The Court also made clear that an avoidance alternative
must be selected unless it would present ``uniquely difficult
problems'' or require ``costs or community disruption of extraordinary
magnitude.'' Id. at 411-21, 416.
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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.
\2\ Section 774.14 of this final rule defines ``Administration''
as ``The FHWA or FTA, whichever is making the approval for the
transportation program or project at issue. A reference herein to
the Administration means the State when the State is functioning as
the FHWA or FTA in carrying out responsibilities delegated or
assigned to the State in accordance with 23 U.S.C. 325, 326, 327, or
other applicable law.'' All references to the ``Administration'' in
the preamble to this final rule are consistent with this definition.
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Courts around the country have applied the Overton Park decision,
reaching different conclusions as to how various factors may be
considered and what weight may be attached to the factors an agency
uses to determine whether an avoidance alternative is or is not
feasible and prudent. Some courts have interpreted Overton Park to
mandate the avoidance of Section 4(f) properties at the expense of
other important environmental and social resources. Congress amended
Section 4(f) in 2005 to address the uncertainty surrounding its
application. Section 6009(b) 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) directed the Secretary
of Transportation to promulgate regulations clarifying ``the factors to
be considered and the standards to be applied'' in determining the
prudence and feasibility of alternatives that avoid the use of Section
4(f) property by transportation projects. The FHWA and FTA published a
NPRM on July 27, 2006, at 71 FR 42611. The NPRM requested comments on
the factors proposed to be considered and standards proposed to be
applied when determining whether an avoidance alternative is feasible
and prudent. The NPRM also solicited comments on a new, alternative
method of compliance created by SAFETEA-LU section 6009(a) for uses
that result in a de minimis impact to a Section 4(f) property and on
other proposed changes to the Section 4(f) regulation. The comment
period remained open until September 25, 2006. All comments, including
several comments submitted late, have been fully considered in this
final rule.
Profile of Respondents
The docket received a total of 37 responses to the NPRM. Out of the
37 responses, 17 were submitted by 20 State and regional transportation
agencies; 6 responses were submitted by trade associations; 9 responses
were submitted by 11 national and local
[[Page 13369]]
environmental advocacy groups; 2 responses were from Federal agencies;
1 response was from a State Historic Preservation Officer; and 2
responses were from private individuals. The trade associations
submitting comments were: The American Association of State Highway and
Transportation Officials, the American Council of Engineering
Companies, the American Cultural Resources Association, the American
Highway Users Alliance, the American Public Transportation Association,
and the American Road and Transportation Builders Association. The
Federal agencies submitting comments were the United States Department
of the Interior and the Advisory Council on Historic Preservation. The
national environmental advocacy organizations submitting comments
included the National Recreation and Park Association, The Nature
Conservancy, and the National Trust for Historic Preservation, the
Rails to Trails Conservancy, the Surface Transportation Policy Project,
the Natural Resources Defense Council, and Environmental Defense.
Overall Position of Respondents
The majority of comments received in response to the NPRM were
generally supportive of the proposed changes. Most comments agreed with
the decision to clarify the feasible and prudent test in a manner that
will continue a high level of protection of Section 4(f) properties
from the impacts of transportation projects. Respondents from all
across the board, including State Departments of Transportation (SDOTs)
and the private sector, commented positively on the rule's specificity
and the flexibility allowed in dealing with various aspects of Section
4(f). Moreover, there was substantial support for the idea that
implementation of the proposed regulations would improve transportation
decisionmaking and expedite environmental reviews, while continuing to
protect Section 4(f) properties.
On the other hand, several respondents had a generally negative
reaction to the proposed regulation. Concerns included that the
proposed regulations do not track the actual process the Administration
and applicant would follow in writing a Section 4(f) evaluation; that
the rule exceeds the requirements of SAFETEA-LU by addressing de
minimis requirements; that the proposed rule's writing, structure, and
organization are very confusing and will cause more litigation; and
that the proposed rule will not streamline environmental analysis or
adequately protect Section 4(f) properties.
General Comments
A general comment noted that the regulation often refers simply to
``refuges'' while the statute refers to ``wildlife and waterfowl
refuges.'' For consistency, we have replaced ``refuges'' with the
statutory terminology throughout the final rule.
Another general comment expressed concern that the final
decisionmaking responsibility under the proposed rule rests with the
U.S. DOT. We considered this view but concluded that the statute
entrusts final decisionmaking responsibility for approving the use of
Section 4(f) property with the Secretary of Transportation, who has
delegated that responsibility to the modal Administrations within the
U.S. DOT.
Another comment asked if this rule would apply to the Federal
Aviation Administration (FAA) and the Federal Railroad Administration
(FRA). The final rule will apply only to the FHWA and FTA. However,
section 6009 of SAFETEA-LU amended 49 U.S.C. 303, which applies to all
U.S. DOT agencies including FAA and FRA. The FAA and FRA may choose to
adopt or use this rule and other FHWA and FTA guidance on Section 4(f).
Finally, one commenter suggested that ``inside metropolitan areas,
any 4(f) related activities, analysis, and decisions should be carried
out in the context of the region-wide environmental mitigation element
of the metropolitan transportation plan.'' Reference is made to the
transportation planning regulation (23 CFR part 450) published in
February 2007. The FHWA and FTA do not agree with this comment. The
environmental mitigation discussed in the metropolitan plan generally
would not delve into the site-specific impacts of individual projects
and the mitigation thereof. That impact assessment will continue to be
performed at the project level generally as part of the documentation
prepared under the National Environmental Policy Act (NEPA). The
discussion in the transportation plan would identify broader
environmental mitigation needs and opportunities that individual
transportation projects might later take advantage of. For example, as
a result of consultation with resource agencies, the plan might
identify an expanse of degraded wetlands associated with a troubled
body of water that represents a good candidate for establishing a
wetlands bank or habitat bank for wildlife and waterfowl. The plan
might identify locations where the purchase of development rights would
assist in preserving a historic battlefield or historic farmstead.
Assessments of each individual project would still be needed to
determine the appropriateness of devoting project funds to one of the
mitigation activities identified in the plan, to a mitigation bank
discussed in the plan, or to new mitigation developed during the NEPA/
Section 4(f) process and not mentioned in the plan. We therefore did
not make changes in response to this comment.
Section-by-Section Analysis of NPRM Comments and the Administration's
Response
For ease of reference, the following table is provided which maps
the former sections of the rule into the corresponding new sections:
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Former section in part 771 New section in part 774
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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), and 774.7 Documentation.
(o).
771.135(b) [in part], (g)(1) [in part], (l), 774.9 Timing.
(m) [in part] and (n).
771.135(b) [in part], (c), (d), (e), (g)(1) 774.11 Applicability.
[in part], (m)(4) and (p) (5)(v).
771.135(f), (g)(2), (h), (p)(5) [in part], and 774.13 Exceptions.
(p)(7).
771.135(p)(3), (p)(4), (p)(5) [in part] and 774.15 Constructive use determinations.
(p)(6).
771.107(d) and 771.135(p)(1) and (p)(2)....... 774.17 Definitions.
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In this preamble, all references to provisions of 23 CFR part 774
refer to the final rule as presented herein. Several provisions
proposed in the NPRM were moved to new sections in response to comments
on the NPRM. A reference to an NPRM section will be explicitly labeled
as such.
Section 771.127 Record of Decision
One comment objected to the provision for signing a Record of
Decision ``no sooner than 30 days after publication of the final
environmental impact statement (EIS) notice in the Federal Register or
90 days after publication of a notice for the draft EIS, whichever is
later.'' This sentence was incorporated verbatim from the FHWA and
FTA's existing regulation implementing the National Environmental
Policy Act (NEPA), and it is consistent with the NEPA regulations of
the Council on Environmental Quality (CEQ), 40 CFR 1506.10(b).
Substantive modifications to the FHWA and FTA joint NEPA regulation are
outside the scope of this rulemaking. Thus, we have retained the
language as proposed in the NPRM.
Section 774.1 Purpose
This section clarifies the purpose of the regulations, which is to
implement 49 U.S.C. 303 and 23 U.S.C. 138 (Section 4(f)). There were no
major comments in response to this section. Therefore, we have retained
the language as proposed in the NPRM.
Section 774.3 Section 4(f) Approvals
This section sets forth the determination required by the
Administration prior to approving a project that uses Section 4(f)
property. Paragraph 774.3(a) is the traditional Section 4(f) approval,
similar to the previous rule at paragraph 771.135(a)(1). Paragraph
774.3(b) implements the new provision in section 6009(a) of SAFETEA-LU
for making de minimis impact determinations in lieu of the traditional
analysis. Section 774.3 includes cross-references to the definitions
for ``use,'' ``feasible and prudent avoidance alternative,'' ``de
minimis impact,'' and ``all possible planning,'' which are located in
the definitions section, 774.17.
Paragraph 774.3(c) provides new regulatory direction for how to
analyze and select an alternative when it has been determined that no
feasible and prudent avoidance alternatives exist and all viable
alternatives use some Section 4(f) property. The paragraph provides a
list of factors that should be considered in the analysis and selection
of an alternative. The factors were drawn from case law experience and
the FHWA ``Section 4(f) Policy Paper.'' \3\ It should be noted 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 other weighed factors to be severe and
not easily mitigated.
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\3\ The FHWA ``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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Paragraph 774.3(d) provides a clear regulatory basis for
programmatic Section 4(f) evaluations, and it distinguishes between the
promulgation of new programmatic Section 4(f) evaluations and the
application of an existing programmatic Section 4(f) evaluation to a
particular project. Paragraph 774.3(e) provides cross-references to the
sections of the regulation governing the coordination, documentation,
and timing of approvals as a road map for the practitioner.
Many comments were received in response to this section. The
majority of comments were generally supportive of the approach proposed
in the NPRM, although many offered minor re-wording for clarity. Those
suggestions are discussed below for each paragraph. Several comments
were strongly opposed to the proposed procedural structure. The NPRM
proposed different processes for approving uses with de minimis and
non-de minimis impacts to Section 4(f) property, and the proposed rule
requires an additional step when approving projects for which all
alternatives use some Section 4(f) property. A use with more than de
minimis impacts would be processed with the traditional two-step
inquiry pursuant to paragraph 774.3(a) (a determination that there is
no feasible and prudent avoidance alternative, followed by a
determination that the action includes all possible planning to
minimize harm to the property). A use with de minimis impacts would be
processed in a single step pursuant to paragraph 774.3(b) (without the
need for the development and analysis of avoidance alternatives, and
with the planning to minimize harm folded into the development of
measures needed to reduce the impacts of the Section 4(f) use to a de
minimis level). Projects for which all viable alternatives use some
Section 4(f) property would be processed in two steps pursuant to
paragraph 774.3(c) (a determination that there is no feasible and
prudent avoidance alternative, followed by the selection of an
alternative by weighing the factors in paragraph 774.3(c) and a
determination, with documentation, that the action includes all
possible planning to minimize harm).
The commenters opposed to the structure proposed in the NPRM
indicated that the regulation in all situations should first require a
determination of which alternative minimizes harm to the Section 4(f)
resource(s), followed by a determination of whether that alternative is
feasible and prudent and may therefore be selected. Comments stated
that in Overton Park, the Supreme Court required such a structure for
Section 4(f) decisionmaking. We disagree. We have re-read Overton Park
and considered this concern very carefully, but we do not agree that
Overton Park stands for the process favored by these commenters or that
the process proposed in the NPRM should be restructured. First, the
NPRM structure follows the order of the requirements as they appear in
the statute. Second, the statute does not require a determination of
which alternative minimizes harm, it requires ``all possible planning''
to minimize harm. It is much more efficient to conduct all possible
planning to minimize harm as the last step for the selected alternative
than to undertake all possible planning repeatedly for each
alternative, including those that are not feasible and prudent, and for
a variety of reasons, cannot be selected. Such a process would be very
inefficient. Finally, the structure and processes in the final rule are
consistent with longstanding FHWA and FTA procedures, with the
exception of the procedures for approving the new concept of de minimis
impacts. For these reasons, we retained the structure proposed in the
NPRM.
Another comment strongly recommended the separation of the
analysis, coordination, documentation, and timing requirements for de
minimis impacts and the traditional Section 4(f) evaluation into
discrete sections of the regulation. We decided not to make this
proposed change because we do not agree that re-structuring the
regulation in this manner would make it easier to use. In addition, for
those who prefer the suggested structure, the existing joint FHWA/FTA
``Guidance for Determining De Minimis Impacts to Section 4(f)
Resources,'' December 13, 2005,\4\ already provides a complete
[[Page 13371]]
discussion of the process for determining de minimis impacts, separate
from any discussion of the requirements for traditional Section 4(f)
approvals.
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\4\ http://www.fhwa.dot.gov/hep/guidedeminimus.htm.
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Another comment requested definitions of numerous phrases used in
section 774.3; for example, ``relative severity of the harm,''
``relative significance,'' and ``the ability to mitigate.'' We did not
include the requested definitions in the final rule because these words
are all used with their common English meanings. The provisions of
section 774.3 will be applied to an extensive variety of fact
situations, and regulatory definitions would unduly limit the
applicability of the provisions to the particular fact situations
anticipated in those definitions.
Section 774.3--One comment suggested that section 774.3,
which prohibits the use of Section 4(f) property unless certain
determinations are made, should simply refer to ``section 4(f)
property'' instead of ``public park, recreation area, or wildlife and
waterfowl refuge, or any significant historic site.'' We agree that
this suggested change improves the readability of the regulation, so we
substituted the phrase ``Section 4(f) property'' and moved the
terminology proposed in the NPRM into a new definition of ``Section
4(f) property'' in section 774.17. The defined term is now used
throughout the regulation.
Paragraph 774.3(a)(1)--Another comment asked that we
confirm ``that an alternative with a net benefit 4(f) use can be chosen
over an alternative with no Section 4(f) use.'' If avoidance
alternatives are determined not to be feasible and prudent then the use
may be approved, whether or not it is a ``net benefit.'' For FHWA
projects, the ``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 FR 20618, April 20, 2005,
would generally apply to situations envisioned by the commenter. This
programmatic Section 4(f) evaluation remains in effect. In cases where
application of this programmatic evaluation is appropriate, the
criteria for evaluating the existence of a feasible and prudent
avoidance alternative is specified in the Findings section of the
programmatic evaluation. If, through the application of this
programmatic Section 4(f) evaluation, the FHWA determines that there
are no feasible and prudent avoidance alternatives, then the
alternative with a net benefit to Section 4(f) property can be
selected. This programmatic Section 4(f) evaluation is applicable only
to FHWA actions.
Paragraph 774.3(b)--One comment requested clarification
whether an analysis of avoidance alternatives must be conducted when
determining that a de minimis impact occurs to a Section 4(f) property.
An analysis of avoidance alternatives is not necessary for a de minimis
impact determination, and the NPRM did not propose to require one.
Using words taken directly from section 6009(a) of SAFETEA-LU, the NPRM
would have allowed a Section 4(f) de minimis impact approval when ``the
use of the property, including any avoidance, minimization, mitigation,
or enhancement measures committed to by the applicant, will have a de
minimis impact * * *.'' We agree with the commenter that the term
``avoidance'' as used in this sentence could cause confusion. The final
rule was reworded to clarify that the term ``avoidance,'' along with
other mitigation or enhancement measures, is used in the context of
project features or designs that minimize harm to the individual
Section 4(f) property and not meant to imply that the applicant must
search for alternatives avoiding the Section 4(f) property altogether.
In this context, the term ``avoidance'' could mean a partial change to
the alignment to avoid a portion of the Section 4(f) property. The
sentence now reads ``* * * the use of the property, including any
measure(s) to minimize harm (such as any avoidance, minimization,
mitigation, or enhancement measures) committed to by the applicant,
will have a de minimis impact, as defined in Sec. 774.17, on the
property.'' The development and evaluation of alternatives that
completely avoid the use of the Section 4(f) property is not required
when the Administration intends to make a finding of de minimis impact
determination. Indeed, to require such an analysis would defeat the
purpose of the de minimis provision in the statute. However, if the
Administration's intention of making a de minimis impact finding is not
realized, then a traditional Section 4(f) evaluation, including the
development and evaluation of alternatives that completely avoid the
use of Section 4(f) property, would be necessary.
Paragraph 774.3(c)--Two comments criticized the choice of
the word ``may'' referencing the portion of the rule which allows the
Administration to approve an alternative that ``minimizes overall
harm'' in light of the enumerated factors. They explain that this
articulation leaves the FHWA and FTA with too much discretion. We are
concerned that if the words ``may select'' were replaced with the
suggested ``shall select'' or ``must select,'' the provision would
require the agencies to actually fund the project, which is not an
obligation imposed by Section 4(f). In response to the comments, after
``may approve'' we added the word ``only.'' This change clarifies our
intent that the FHWA and FTA may only select the alternative that
causes the least overall harm.
When there is no feasible and prudent avoidance alternative, many
comments suggested various replacements for the phrase ``most prudent''
as a criterion for choosing among several project alternatives and
determining which would cause the least overall harm. After considering
the range of proposals and their rationales, we have decided to remove
the words ``most prudent'' from the analysis of overall harm. It
appears to cause confusion and it detracts from the purpose of this
portion of the rule, which is to provide clear criteria for choosing a
course of action when all available alternatives use Section 4(f)
property. Deleting the modifier ``most prudent'' appropriately shifts
the focus of the multi-factor inquiry to the requirement of minimizing
overall harm.
Several commenters suggested that the proposed weighing of factors
in determining the alternative with the least overall harm would not
place a ``thumb on the scale'' in favor of the preservation of the
Section 4(f) properties, as required by the statute. The FHWA and FTA
agree that a reminder about the preservation purpose of the statute in
the balancing of various factors is appropriate. Accordingly, paragraph
774.3(c)(1) now states that the Administration may approve the
alternative that causes the least overall harm ``in light of the
statute's preservation purpose.'' The preservation purpose of Section
4(f) is described in 49 U.S.C. 303(a), which states: ``It is the policy
of the United States Government that special effort should be made to
preserve the natural beauty of the countryside and public park and
recreation lands, wildlife and waterfowl refuges, and historic sites.''
Virtually identical language appears in 23 U.S.C. 138. This addition
does not change the settled principle that where there is no feasible
and prudent avoidance alternative, Section 4(f) does not preclude the
Administration from selecting any alternative from among those with
substantially equal harm. In such instances, the selection will be
based primarily on the relative performance of those alternatives with
respect to factors (v) ``the degree to which each alternative meets the
[[Page 13372]]
purpose and need for the project,'' (vi) ``after reasonable mitigation,
the magnitude of any adverse impacts to resources not protected by
Section 4(f),'' and (vii) ``substantial differences in costs among the
alternatives.''
Two comments proposed incorporating by reference the NPRM
definition of ``feasible and prudent alternative'' into paragraph
774.3(c), explaining that this change would ensure consistency in the
use of the term, especially in the meaning of ``prudent.'' We decline
to adopt this proposal because the term ``feasible and prudent
alternative'' as used in the definitions and paragraph 774.3(a)
signifies an alternative to the use of Section 4(f) property, whereas
in paragraph 774.3(c) all alternatives under consideration use some
Section 4(f) property and use of the term in this context would be
confusing.
Several comments proposed substituting the word ``balancing'' for
the term ``considering,'' as a more precise way to describe the
analytical process described in the NPRM. We have adopted the
suggestion to replace the term ``considering'' with the term
``balancing'' as a better way to articulate the intent of paragraph
774.3(c). We agree that such an inquiry will necessarily involve a
balancing of competing and conflicting considerations given that some
of the factors may weigh in favor of one alternative, yet other factors
may weigh against it. Mere ``consideration'' of the factors does not
capture this idea--the factors must be weighed against each other. How
the various factors listed in paragraph 774.3(c)(1) are balanced and
weighed in a given instance is within the discretion of FHWA and FTA,
and is subject to the facts and circumstances of the particular project
and Section 4(f) properties involved. As previously noted, the FHWA and
FTA have inserted a reminder that the preservation purpose of the
statute in the balancing of the various factors must be given its
proper weight.
Several comments interpreted the balancing test of paragraph
774.3(b) as satisfying the statutory requirement to undertake ``all
possible planning to minimize harm'' to the Section 4(f) property. One
comment proposed that we add a statement that performing the analysis
pursuant to paragraph 774.3(c) satisfies FHWA's obligation to undertake
all possible planning to minimize harm to Section 4(f) properties.
Other comments suggested that paragraph 774.3(c) should expressly state
that any alternative selected based on the enumerated factors should
include all possible planning to minimize harm to Section 4(f) property
resulting from the use.
Contrary to the interpretation suggested in some comments, we did
not intend that engaging in the balancing test alone would fulfill the
requirement to undertake ``all possible planning to minimize harm'' to
the Section 4(f) property. The selection of an alternative pursuant to
paragraph 774.3(c) is not in itself a Section 4(f) approval and does
not complete the evaluation process. After the alternative is selected,
the additional step of identifying, adopting, and committing to
measures that will minimize the harm to the Section 4(f) property must
be documented before Section 4(f) approval can be granted. The extent
of effort needed to satisfy the requirement to undertake all possible
planning to minimize harm is included in the definitions section,
774.17. When the characteristics of a Section 4(f) property lend
themselves to mitigation, and with mitigation the alternative that uses
that property would have a lower net impact, the balancing test would
weigh these facts and may result in the alternative being selected. We
addressed the confusion on this topic by dividing the NPRM paragraphs
774.3(a)(1) and 774.3(b) each into two paragraphs and stating
separately in each the requirement to undertake all possible planning
to minimize harm. We also slightly reworded the paragraph for
additional clarity.
We received a variety of comments regarding the list of factors in
paragraph 774.3(c)(1) which the Administration would balance in making
the decision on which alternative causes the least overall harm. It is
important to keep in mind the situations in which the factors will
apply--these factors will only apply after a determination has already
been made that there is no feasible and prudent alternative to avoid
the use of Section 4(f) property. The point of the analysis is a
comprehensive inquiry that balances the net harm to Section 4(f)
properties caused by each alternative with all other relevant concerns.
One comment provided examples of how the balancing of factors in
paragraph 774.3(c) will help transportation agencies arrive at better
overall decisions.
We reiterate here the point made above and in the NPRM that this
balancing must be done with a ``thumb on the scale'' in favor of
protecting Section 4(f) properties. A scale that takes into account the
preservation purpose of the statute must be used to compare the net
harm to Section 4(f) properties (factors in paragraphs 774.3(c)(1)(i)-
(iv)) with other relevant concerns (the remaining factors). One
commenter asked if this means ``an alternative with somewhat more harm
to Section 4(f) properties could be selected over one with somewhat
lesser harm if the one with lesser harm to Section 4(f) properties
would result in more adverse effects to non-Section 4(f) properties/
higher costs/lesser ability to satisfy needs, or some combination
thereof?'' The answer is yes, so long as the difference in overall harm
is substantial. Where the factors favoring the selection of the
alternative with greater harm to Section 4(f) property do not clearly
and substantially outweigh the factors favoring the alternative with
less harm to Section 4(f) property, the alternative with less harm to
Section 4(f) property must be selected. As the significance of the
Section 4(f) property or the degree of harm to the Section 4(f)
property increases, another alternative must entail correspondingly
greater harm to non-Section 4(f) properties to outweigh the harm to the
Section 4(f) property and be selected. Because there is necessarily a
degree of judgment involved in these decisions, the Administration must
be mindful to carefully document its reasoning.
With respect to the factors in paragraphs 774.3(c)(1)(ii) and
(iii), one comment suggested that the determinations of the relative
severity of the harm and relative significance of the Section 4(f)
properties should be made solely by the officials with jurisdiction
over the resource. We did not adopt this suggestion because, in
practice, competing views are often expressed when multiple Section
4(f) properties are being evaluated. The park may seem more important
to the park official than the historic building beside the park,
whereas the SHPO may feel just the opposite. The Administration, after
listening to these competing points of view, must ultimately decide. In
the statute, Congress chose to entrust the Secretary of Transportation
with the final decision.
With respect to the factor in paragraph 774.3(c)(1)(i), ``The
ability to mitigate adverse impacts to each Section 4(f) property
(including any measures that result in benefits to the property),'' one
comment suggested that only ``legally binding'' mitigation (i.e.,
mitigation committed to in the ROD) should be considered. We do not
agree because the purpose of the balancing test is to select an
alternative, so there is no legally binding mitigation at that point in
the process. However, we expect that mitigation used to offset harm
would be a matter of record and the appropriate commitments should be
included in the project decision.
[[Page 13373]]
Another comment stated that nothing in the regulation requires the
adoption of any mitigation relied upon in this factor. This is not
true. The new definition of ``all possible planning'' to minimize harm
sets forth specific criteria which will govern whether the identified
mitigation must be adopted. Where the availability of adequate
mitigation measures is a factor that is relied upon in selecting an
alternative, the measures that were identified in the analysis must be
incorporated into the project through the CE determination, ROD or
FONSI, or by other means. There is additional discussion of this issue
in the analysis of section 774.17 below.
Several commenters felt that the only consideration in alternative
selection should be minimizing harm to the Section 4(f) properties.
Consequently, in their view, the factors in NPRM subparagraphs
774.3(b)(5) through (8), which introduce non-Section 4(f)-related
concerns into the selection process, should be eliminated. We have
carefully reviewed those comments but decided to keep the first three
of these factors, now numbered 774.3(c)(1)(v)-(vii) for the reasons
discussed below. The final factor in the NPRM, concerning joint
planning, was dropped for other reasons, as discussed below following
the discussion of the factors retained.
The factors in 774.3(c)(1)(v)-(vii) were retained in the final rule
for several reasons. First, the selection of an alternative in
instances where all viable alternatives use some Section 4(f) property
must be distinguished from the selection process where there is a
viable alternative that avoids using Section 4(f) property. While the
caselaw is not entirely consistent, there is ample support for the FHWA
and FTA's approach in the courts. The Supreme Court's Overton Park
decision did not consider this aspect of Section 4(f), as that case
turned on the FHWA's failure to document any consideration of feasible
and prudent alternatives to the use of the park. Second, since Section
4(f) was enacted in 1966, Congress has identified many other types of
environmental resources for protection under Federal law besides
Section 4(f) properties; for example, threatened and endangered
species, prime farmland, and wetlands of national importance. There is
nothing in SAFETEA-LU to suggest that Section 4(f) protection should
trump all other concerns when there is no feasible and prudent
avoidance alternative. The FHWA and FTA's approach interprets Section
4(f), as amended by SAFETEA-LU, in a way that gives appropriate weight
to all of the resources impacted by a proposed transportation project.
Third, 23 U.S.C. 109(h) directs FHWA to make final project decisions
``in the best overall public interest, taking into account the need for
fast, safe and efficient transportation, public services, and the costs
of eliminating such adverse effects and the following: (1) Air, noise,
and water pollution; (2) destruction or disruption of man-made and
natural resources, aesthetic values, community cohesion and the
availability of public facilities and services; (3) adverse employment
effects, and tax and property value losses; (4) injurious displacement
of people, businesses and farms; and (5) disruption of desirable
community and regional growth.'' FTA law similarly requires that ``the
preservation and enhancement of the environment and the interest of the
community in which the project is located'' be considered. (49 U.S.C.
5324(b)(3)(A)(ii)). These statutes support the FHWA and FTA's
interpretation of Section 4(f) as allowing the consideration of other
significant impacts when it is not possible to avoid using Section 4(f)
property. As described in the NPRM preamble, the balancing approach
adopted in this rule enables the Administration to take all of these
concerns into account by allowing serious problems to outweigh
relatively minor Section 4(f) impacts, as well as Section 4(f) impacts
that can be satisfactorily mitigated.
One comment pointed out that the list of factors in paragraph
774.3(c)(1) is inconsistent with the lists in the proposed definitions
of ``all possible planning'' and ``feasible and prudent alternative''
in 774.17, which includes some similar and some additional factors.
This disparity, in the commenter's opinion, confused the application of
the factors in the overall Section 4(f) analysis. This comment proposed
that we combine the multi-factor lists. We considered this comment, but
decided not to adopt it. The three lists of factors included in the
NPRM apply to three distinct situations. The factors enumerated in the
proposed definition of ``feasible and prudent alternative'' are used to
determine whether an alternative that avoids using Section 4(f)
property exists. If the analysis concludes that no such avoidance
alternative exists, then a different set of factors, those in paragraph
774.3(c), comes into play to guide the Administration in selecting from
among the alternatives all of which use some Section 4(f) property.
Once an alternative is chosen, if it uses Section 4(f) property, then
the Administration has a further obligation to undertake all possible
planning to minimize harm to that property. The third set of factors in
the definition of this term is used to determine the appropriate extent
of the planning to minimize harm.
With respect to the factor in paragraph 774.3(c)(1)(vii),
``[e]xtraordinary differences in costs among the alternatives,'' some
comments suggested that the word ``extraordinary'' should be deleted,
thus allowing any difference in costs to be considered and balanced
with all other factors in determining which of the alternatives
minimizes overall harm. Since this factor is a comparison of the costs
of alternatives under consideration, all of which use Section 4(f)
property, the FHWA and FTA agree that the difference in cost would not
have to be ``extraordinary,'' but that the magnitude of the difference
would determine its appropriate weight when balancing it with the other
factors. Consideration of a minor difference in the cost among
alternatives in the balancing test would be inappropriate in that there
must be a measurable and significant degree of difference. For this
reason we are substituting the word ``substantial'' in place of the
word ``extraordinary'' in this factor. Requiring a substantial cost
difference between alternatives emphasizes the importance of devoting
funds to minimizing harm to the Section 4(f) property and other
important resources more so than if any difference in cost were allowed
to influence the choice of alternatives. When deciding whether to
consider a cost difference ``substantial,'' in addition to considering
the cost as a number in isolation, the FHWA and FTA may consider
factors such as the percentage difference in the cost of the
alternatives; how the cost difference relates to the total cost of
similar transportation projects in the applicant's annual budget; and
the extent to which the increased cost for the subject project would
adversely impact the applicant's ability to fund other transportation
projects.
Several comments expressed confusion regarding the factor in NPRM
paragraph 773.4(b)(8), ``[A]ny history of concurrent planning or
development of the proposed transportation project and the Section 4(f)
property.'' Some commenters were concerned about how this factor was
related to, and would apply in, the balancing of factors and the
ultimate determination of overall harm. Others suggested that the scope
of concurrent planning in this context was unclear and others thought
the term should be defined in section 774.17. In response to these
comments, we have decided to eliminate concurrent
[[Page 13374]]
planning as a factor in determining overall harm. Concurrent planning,
in which the ``concurrent or joint planning or development of the
transportation facility and the Section 4(f) resource occurs,'' more
appropriately relates to the applicability of Section 4(f) requirements
to a specific property. Concurrent planning in this context is
addressed in paragraph 774.11(i).
Another comment pointed out the lack of reference to the no-action
alternative in this paragraph, and asked whether that means it need not
be discussed in the evaluation. The no-action alternative should always
be considered in a Section 4(f) evaluation and the reasons for not
selecting it must be identified.
Paragraph 774.3(d)--Several comments on the NPRM indicated
that programmatic Section 4(f) evaluations are misunderstood by some.
In response, we have clarified what is meant by a programmatic Section
4(f) evaluation in paragraph 774.3(d), and have specified the process
for the development of a programmatic evaluation as well as the
application of an existing programmatic evaluation. The paragraph makes
clear that a programmatic Section 4(f) evaluation does not
automatically satisfy Section 4(f) for an entire class of projects--
rather it establishes a simpler approach to compliance that is tailored
to that class of projects. They are not exemptions and individual
projects must still be reviewed in accordance with the process
established in the programmatic Section 4(f) evaluation.
Paragraph 774.3(e)--No substantive comments were received
on this subsection. We have retained the language as proposed in the
NPRM.
Section 774.5 Coordination
One general comment recommended the separation of the analysis,
coordination, format, and timing requirements for de minimis impacts
into discrete sections of the regulation. We decided not to make this
proposed change because we believe that grouping all of the
requirements for coordination, all of the requirements for timing, and
all of the requirements for documentation together is a reasonable
structure for the regulation and is more consistent with the familiar,
former regulation. For practitioners who need more guidance on the de
minimis impact requirements, the joint FHWA/FTA ``Guidance for
Determining De Minimis Impacts,'' December 13, 2005, discusses all of
the de minimis impact requirements together in one document.
Another general comment suggested that this section should be
revised to explain the coordination of reviews performed under NEPA,
Section 4(f), and Section 106 of the National Historic Preservation
Act. We did not adopt this suggestion because it is already stated in
23 CFR 771.105(a), which explains that it is the policy of the FHWA and
FTA that ``[t]o the fullest extent possible, all environmental
investigations, reviews, and consultations be coordinated as a single
process, and compliance with all applicable environmental requirements
be reflected in the environmental document required by this
regulation.'' A similar statement with regard to the content of
environmental documents is found at 23 CFR 771.133.
We received a general comment that clear guidance is needed on the
coordination process for Section 4(f) uses with impacts greater than de
minimis, to ensure that the officials with jurisdiction are fully
engaged in the development of avoidance alternatives and the
determination of appropriate measures to minimize harm. We agree that
coordination with the officials with jurisdiction is important and
integral to Section 4(f) compliance, and note that the regulation
already includes explicit coordination requirements in paragraph
774.5(a). Additional guidance is included in the FHWA ``Section 4(f)
Policy Paper,'' March 2, 2005, so we did not make any changes in
response to this comment.
One general comment requested that we clarify in the preamble to
this regulation that the existing Section 4(f) de minimis impact
guidance, issued on December 13, 2005, remains in effect and is not
superseded by these regulations. We agree that the inclusion of
requirements for de minimis impacts in these regulations was not
intended to supersede or replace the existing guidance, but to ensure
that the current Section 4(f) regulation is consistent with the Section
4(f) statute, as amended by SAFETEA-LU. The joint FHWA/FTA ``Guidance
for Determining De Minimis Impacts to Section 4(f) Resources,''
December 13, 2005, remains in effect, but the Administration may review
it and make clarifying revisions some time in the future. The FHWA
``Section 4(f) Policy Paper,'' March 2, 2005, which was written prior
to enactment of the SAFETEA-LU amendment to the Section 4(f) statute,
remains in effect except where it could be interpreted to conflict with
this regulation, in which case the regulation takes precedence. The
FHWA plans to update the ``Section 4(f) Policy Paper'' to reflect
SAFETEA-LU and this final rule.
One comment requested that the regulation address the additional
coordination that is needed when the impacted Section 4(f) property was
created or was improved with funds from various programs administered
by the U.S. Department of the Interior. Guidance for such coordination
is already addressed in the FHWA ``Section 4(f) Policy Paper'' and in
the ``Guidance for Determining De Minimis Impacts to Section 4(f)
Resources.'' However, because we agree that this coordination is
important, we addressed the comment by adding a new paragraph (d) to
section 774.5: ``When Federal encumbrances on Section 4(f) property are
identified, coordination with the appropriate Federal agency is
required to ascertain the agency's position on the proposed impact, as
well as to determine if any other Federal requirements may apply to
converting the Section 4(f) land to a different function. Any such
requirements must be satisfied, independent of the Section 4(f)
approval.''
Paragraph 774.5(a)--A number of comments focused on the
length of the notice and comment period. The NPRM proposed to continue
the current 45-day comment period. The comments urged a period ranging
from as short as 15 days, up to a maximum of 60 days. Specifically, one
comment urged a maximum of 60 days with presumed concurrence if no
comment was received within 15 days after the deadline. One comment
urged a period of 60 days, but suggested that comments be open to the
public and other Federal agencies, and not just to those with
jurisdiction over the Section 4(f) property. One comment urged a period
of at least 45 days, not to exceed 60 days.
Several commenters reasoned that a period with a maximum of 60 days
would be harmonious with the streamlining provisions of section 6002 of
SAFETEA-LU and the comment period provided by Section 106 of the
National Historic Preservation Act for consultation with State Historic
Preservation Officers and the Advisory Council on Historic
Preservation. Those urging a provision for presuming concurrence if the
comments are not received by various deadlines stated that such a
provision is needed because, in the experience of many applicants,
comments are routinely submitted many months late. Another commenter
thought the requirement for the U.S. Department of the Interior (DOI)
to review Section 4(f) evaluations added minimal value to the process
and suggested that DOI's role should be eliminated altogether.
After considering all of the views submitted, we decided to keep
the 45-day comment period in the final rule.
[[Page 13375]]
This period appears to be a reasonable length of time, in light of the
current practice with which all are familiar. We did not eliminate the
requirement for a comment period because the statute itself requires
coordination with certain agencies, including DOI. However, we decided
to adopt a deadline for the receipt of comments by adding the following
at the end of paragraph 774.5(a): ``If comments are not received within
15 days after the comment deadline, the Administration may assume a
lack of objection and proceed with the action.'' This change addresses
the concern that comments are routinely sent late, but it allows
flexibility for the Administration to extend the comment period in
individual cases upon request.
Paragraph 774.5(b)--Several comments requested additional
requirements for public notice, review, and comment related to de
minimis impacts to historic properties. In response, the FHWA and FTA
decided to accept the wording suggested by one of the commenters.
Paragraph 774.5(b)(1)(iii) now says: ``Public notice and comment,
beyond that required by 36 CFR Part 800, is not required.'' The
regulation is consistent with the provisions of SAFETEA-LU that allow
the de minimis impact determination to be made based on the process
required under section 106 of the National Historic Preservation Act.
Other comments requested additional guidance on public notice,
review, and comment related to de minimis impacts to parks, recreation
areas, and wildlife/waterfowl refuges. One commenter believes that
public notice, review, and comment are adequately covered by NEPA and
its implementing regulations, and any additional opportunities are
unnecessary. We decided to retain the proposed regulatory text on
public notice and comment, but to add: ``This requirement can be
satisfied in conjunction with other public involvement procedures, such
as a comment period provided on a NEPA document.'' SAFETEA-LU requires
public notice and the opportunity for public review and comment before
the Administration can make a de minimis impact determination. Where
the NEPA process already provides opportunities for public notice,
review, and comment [i.e., for environmental assessments (EAs) and
EISs], the same opportunities can be used for projects where the
Administration is considering a de minimis impact determination. For
those actions that do not routinely require public review and comment
under NEPA [e.g., categorical exclusions (CEs) and certain
reevaluations] a separate public notice and opportunity for review and
comment will be necessary for a de minimis impact determination. In
these situations, the public notice and opportunity for review and
comment should be based on the specifics of the situation and
commensurate with the type and location of the Section 4(f) property,
impacts, and public interest.
Paragraph 774.5(b)(1)--Several comments suggested that the
concurrence of the State Historic Preservation Officer (SHPO) or Tribal
Historic Preservation Officer (THPO) in a proposed de minimis impact
determination should be assumed if 30 days pass without written
concurrence. We did not adopt this change because the statute
explicitly requires written concurrence in the Section 106
determination to support a de minimis impact determination. The joint
FHWA/FTA ``Guidance for Determining De Minimis Impacts to Section 4(f)
Resources,'' December 13, 2005, explains the use of Section 106
programmatic agreements (PA) in making de minimis impact
determinations. It says that when a Section 106 PA explicitly states
that an individual Section 106 determination of ``no historic property
affected'' or ``no adverse effect,'' is made in accordance with the PA,
it may be relied upon as the basis for de minimis impact determination.
If the PA specifies that the SHPO or THPO's concurrence in such a
determination may be assumed after a specified timeframe, then the SHPO
or THPO's signature on the PA itself constitutes the required written
concurrence in the Section 106 determination that is necessary for a de
minimis impact determination. With such a PA, a SHPO or THPO is within
its rights asking for a side agreement that would specify conditions
under which a nonresponse would not be used as the basis for a de
minimis impact determination. In any case it is expected that the SHPO
or THPO will be apprised of the agency's intention to make a de minimis
determination under the PA approach and afforded an opportunity to
engage in the process on a project-by-project basis, if desirable by
either party.
Several comments stated that paragraph 774.5(b)(1) should spell out
the written concurrences necessary to support a de minimis impact
determination for a historic property in order to clarify which
concurrences are required. We agree, and the final rule explicitly
states which parties must concur, consistent with 49 U.S.C.
303(d)(2)(B) and 23 U.S.C. 138(b)(2)(B).
A number of comments objected to the statement in paragraph
774.5(b)(1) that public notice and comment other than the Section 106
consultation is not required. These commenters pointed out that the
Section 106 regulation (36 CFR part 800) has its own public involvement
requirements, which may apply in a particular case. One commenter
suggested alternative language to recognize that pertinent requirements
of the Section 106 regulation must be met. We adopted the suggested
language, and the sentence now says that ``public notice and comment,
beyond that required by 36 CFR part 800, is not required.''
Paragraph 774.5(b)(2)--Several commenters requested
clarification of the sequence of events for coordinating with the
official(s) with jurisdiction over parks, recreation areas, and refuges
prior to making de minimis impact determinations. These commenters
proposed revising the regulation to enable the Administration to notify
the official(s) with jurisdiction of its intent to make a de minimis
impact determination at any time during the coordination process,
instead of postponing notification until the conclusion of the public
review and comment period. The FHWA and FTA decided to adopt this
proposed change by moving the clause ``following an opportunity for
public review and comment'' from the beginning of the second sentence
and inserting it directly before the concurrence requirement:
``Following an opportunity for public review and comment as described
in paragraph (b)(2)(i) of this section, the official(s) with
jurisdiction over the property must concur in writing * * *. '' The
regulation would still require the Administration to wait until after
the public comment process before making a formal request for
concurrence, but no specific timeframe is provided for notifying the
officials with jurisdiction. The revised paragraph will begin with
``The Administration shall inform the official(s) with jurisdiction of
its intent * * *. '' The FHWA and FTA reasoned that it would be
beneficial to have the flexibility to notify the official(s) with
jurisdiction early in the coordination process to ascertain the
position of the officials and so that the preliminary views of such
official(s), if available, can be included in the notice provided to
the public.
One commenter suggested eliminating the provision that requires the
Administration to inform the official(s) with jurisdiction of the
intent to make a de minimis impact determination based on those
officials' concurrence that the project will not adversely affect the
Section 4(f) property. The FHWA and FTA decided not to make this
[[Page 13376]]
change. The sequence of events leading to the Administration's finding
is important and will ensure that the official(s) with jurisdiction
understand that their written concurrence is required for the
Administration's de minimis impact determination and that they agree
with any proposed mitigation necessary to the de minimis impact
determination.
One commenter suggested that the FHWA and FTA add a further
provision to the coordination process in paragraph 774.5(b)(2) that
would expressly allow the concurrence in the de minimis impact
determination to be combined with other comments provided by the
official(s) on the project. The FHWA and FTA decided to follow this
recommendation and incorporated the proposed language: ``This
concurrence may be combined with other comments on the project provided
by the official(s).'' Another comment asked for clarification whether
the coordination can be accomplished in conjunction with other public
involvement procedures, such as a comment period provided on a NEPA
document. The FHWA and FTA's NEPA regulation provides for integrated
procedures in 23 CFR 771.105 and 771.133, so this point was clarified
as suggested. With the clarifications described above, the new
provision will help streamline the environmental review process because
it will allow the official(s) with jurisdiction to combine comments on
the de minimis impact proposal with comments submitted on other
environmental issues related to the project.
Paragraph 774.5(c)--One commenter believed that the
coordination requirements discussed in section 774.5 did not
differentiate between individual and programmatic Section 4(f)
evaluations and requested clarification. Programmatic evaluations are
differentiated by virtue of being addressed in a separate paragraph,
774.5(c). We have now clarified what is meant by a programmatic
evaluation in paragraph 774.3(d), as previously discussed.
Another comment suggested a 60-day comment period be required when
there is a use of land from a Section 4(f) property that is covered by
a programmatic Section 4(f) evaluation. The comment also suggested that
the coordination during the use of a programmatic Section 4(f)
evaluation should ``be open to the public and not just the official(s)
with jurisdiction.'' Programmatic Section 4(f) evaluations provide
procedural options for demonstrating compliance with the statutory
requirements of Section 4(f). The FHWA has issued five nationwide
programmatic Section 4(f) evaluations. (FTA has not issued any, but has
plans to do so.) Before being adopted, all of the FHWA programmatic
evaluations were published in draft form in the Federal Register for
public review and comment. They were also provided to appropriate
Federal agencies for review. Each programmatic evaluation contains
specific criteria, consultation requirements, and findings that must be
met before the programmatic evaluation may be applied on any given
project. A primary benefit to using this prescribed step-by-step
approach is a reduction of the time it takes to achieve Section 4(f)
approval.
The NPRM did not stipulate any specific comment period or
coordination process when programmatic Section 4(f) evaluations are
used. When applied to individual projects each of the five approved
programmatic evaluations has coordination requirements, but none of
them requires a specific comment period.\5\ We did not make the changes
proposed by the commenter because we believe the imposition of
additional comment periods, coordination periods, or public involvement
at the time a programmatic evaluation is applied to an individual
project would severely limit the effectiveness of this approach.
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\5\ Three of the programmatic Section 4(f) evaluations have
public involvement requirements. The ``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'' requires project-level public involvement activities
consistent with 23 CFR 771.111. The ``Final Nationwide Section 4(f)
Evaluation and Approval for Federally-Aided Highway Projects with
Minor Involvements with Historic Sites'' and the final
``Programmatic Section 4(f) Evaluation and Approval for FHWA
Projects that Necessitate the Use of Historic Bridges'' both require
coordination with various parties in accordance with 36 CFR part
800, which may include members of the public identified as
interested persons, or consulting parties.
---------------------------------------------------------------------------
One commenter expressed concern about the potential lack of public
notice or opportunity to comment on the evaluation of certain historic
resources, such as bridges, under the relevant programmatic Section
4(f) evaluation, when the project is processed with a NEPA categorical
exclusion (CE). It was suggested that, at a minimum, a CE project
processed under a programmatic Section 4(f) evaluation should be posted
on the applicant's Web site. The public involvement requirements
related to categorical exclusions, as well as other classes of actions,
are addressed in 23 CFR 771.111. The public involvement requirements
for application of a particular programmatic Section 4(f) evaluation
are specified in the programmatic evaluation itself. Hence, the FHWA
and FTA concluded that the issue has been adequately addressed and
additional requirements are not necessary.
Section 774.7 Documentation
This section contains the requirements related to the documentation
of the various Section 4(f) analyses and approvals. In the NPRM this
section was titled ``Format.'' The title was changed to
``Documentation'' to more accurately reflect the content of this
section.
In response to a general comment that it was difficult to locate
the requirements for de minimis impact determinations, the section was
re-ordered so that it now tracks the order of section 774.3, ``Section
4(f) approvals.'' Thus, paragraph 774.7(a) now addresses the
documentation of Section 4(f) evaluations prepared to comply with
approvals under 774.3(a); paragraph 774.7(b) contains the format
requirements for de minimis impact determinations under paragraph
774.3(b); and paragraph 774.7(c) contains the requirements for
determinations of the least overall harm under paragraph 774.3(c) when
there is no feasible and prudent avoidance alternative. Paragraphs (d)-
(f) are additional documentation requirements for particular situations
that have no corresponding paragraphs within section 774.3.
Several comments demonstrated confusion over NPRM paragraph
774.7(g) which contained the documentation requirements for
programmatic Section 4(f) evaluations. This material was moved to
paragraph 774.3(d) in the final rule so that the discussion of
approvals using programmatic Section 4(f) evaluations and the
documentation requirements are now grouped together. We felt this
restructuring was needed to clarify the difference between promulgating
a programmatic Section 4(f) evaluation and the subsequent application
of the programmatic evaluation to an individual project decision.
Paragraph 774.7(e) in both the NPRM and this final rule contains
the requirements for making Section 4(f) approvals for tiered
environmental documents. This paragraph received the most comments of
any part of section 774.7; substantial parts of the paragraph were re-
worded for clarity in response to the comments, as described below.
Paragraph 774.7(a)--One comment suggested that the last
part of the sentence be revised to repeat the exact language from the
statute. This section, though, does not set forth the standard
[[Page 13377]]
for Section 4(f) approvals, but rather provides the format of the
documentation for Section 4(f) approvals. Thus, the language need not
exactly duplicate the statutory standard for approvals, which is
implemented by section 774.3. We believe that the language used is
consistent with the statute but provides direction for project
applicants preparing Section 4(f) documents.
Another comment suggested adding the language ``or reduce its use
significantly'' after ``that would avoid using the Section 4(f)
property.'' We did not adopt this change because the language at the
end of the paragraph requires a summary of ``the results of all
possible planning to minimize harm to the Section 4(f) property.'' The
documentation of ``all possible planning to minimize harm'' would show,
among other things, how any reductions in the use of Section 4(f)
property would be accomplished. In addition, the Section 4(f) caselaw
is fairly uniform in holding that an alternative that uses Section 4(f)
property is not properly considered an ``avoidance alternative'' under
the statute. Incidentally, the words ``that would avoid using the
Section 4(f) property'' which delimited ``avoidance alternative'' in
the NPRM, have now been deleted as redundant.
Paragraph 774.7(b)--Regarding paragraph 774.7(b), one
commenter requested clarification that the mitigation measures
suggested in the proposed regulation should be considered only if an
applicant has committed to incorporate the measures into the project.
The commenter suggested changing the provision to refer to ``any
avoidance, minimization, mitigation, or enhancement measures committed
to by the applicant.'' The FHWA and FTA decided not to make this
proposed change because the statute requires any measures that are
required to be implemented as a condition of approval of a de minimis
impact determination to be part of the project. An applicant does not
have a choice regarding whether to incorporate the measures into a
project if the measures were mentioned when the impacts were classified
as de minimis. Accordingly, the FHWA and FTA determined that the
suggested language would be redundant since, as the regulation
currently states, the applicant will automatically be required to
incorporate these measures.
Another commenter suggested that the determination whether the
project impacts are de minimis for Section 4(f) purposes should be made
before mitigation is applied, not after. This commenter claimed that
this regulation would allow an applicant to illegally characterize the
impacts of a project that are greater than de minimis impacts as de
minimis to avoid having the project analyzed, assessed, and evaluated.
The FHWA and FTA did not accept this proposal because it violates the
governing statute. As amended by section 6009(a) of SAFETEA-LU, Section
4(f) plainly requires that ``[t]he Secretary shall consider to be part
of a transportation program or project any avoidance, minimization,
mitigation, or enhancement measures that are required to be implemented
as a condition of approval of the transportation program or project.''
49 U.S.C. 303(d)(1)(C). Mitigation measures must be applied up front,
with the determination made after taking such mitigation into account.
The proposed language has been retained.
For consistency with paragraph 774.3(b) and the statute, the word
``determination'' was substituted for ``finding'' in this paragraph.
Paragraph 774.7(c)--One commenter pointed out that framing
the regulatory provision in terms of what an ``applicant'' must do is
misleading as it implies that, contrary to statute, the applicant has a
decision-making role in the Section 4(f) approval process. This
commenter proposed rewriting paragraph (c) to reflect the decision-
making role of the Administration in the Section 4(f) approval process:
``the Administration, in consultation with the applicant, must select.
. . .'' Section 4(f) assigns the responsibility for evaluating and
approving transportation projects to the Secretary of Transportation
(who, in turn, has delegated it to the modal administrations within the
U.S. DOT). The FHWA and FTA agree with the comment that the
Administration, and not the applicant, has the statutory authority to
approve an alternative under Section 4(f), but declines to adopt the
commenter's proposed text. Instead, the FHWA and FTA have decided to
convey the same idea by using language consistent with paragraph
774.3(c), to which the requirements in paragraph 774.7(c) pertain. The
relevant portion of the provision now reads as follows: ``the
Administration may approve only the alternative that causes the least
overall harm in accordance with Sec. 774.3(c).'' This language relies
heavily on the revised text of paragraph 774.3(c) and appropriately
reserves the decision-making role to the Administration.
In a slight variation on the comment discussed above, one commenter
objected to the use of the word ``applicant'' because it fails to
recognize the role of most applicants and the Administration as joint
lead agencies in preparing the NEPA review of the project, in
accordance with SAFETEA-LU section 6002. The commenter suggested
changing the provision to read ``the applicant, with approval from the
NEPA Lead Agency, must select. * * *'' The FHWA and FTA did not follow
this recommendation because, whereas the responsibility for document
preparation, review, and approval under NEPA is now shared between the
Administration and the recipient of Federal funds, the Administration
has the exclusive statutory authority to grant Section 4(f) approvals.
An applicant's role under NEPA does not authorize it to make Section
4(f) approvals unless the applicant is a State that has assumed Section
4(f) responsibilities as part of an assumption of environmental
responsibility under applicable law, such as 23 U.S.C. 325, 326, or
327.
Paragraph 774.7(d)--This paragraph requires a legal
sufficiency review for certain Section 4(f) approvals. One commenter
questioned its need. The Administration has legal responsibility to
ensure compliance with applicable environmental laws, regulations, and
Executive Orders. Section 4(f) has been extensively interpreted by the
Courts, and the application of the law to a specific approval may
involve the application of complex legal principles. The
Administration's application of Section 4(f) benefits from the legal
sufficiency review. Moreover, Administration attorneys familiar with
the judicial interpretations of Section 4(f) law in the Federal Circuit
where the project is located perform the legal sufficiency review.
Thus, the legal sufficiency review enhances the likelihood that the
Administration's Section 4(f) decisions will be appropriate and will be
sustained in Federal court if litigation ensues. Finally, the legal
sufficiency review is required by a Department-wide order implementing
Section 4(f). See DOT Order 5610.1C. The requirement for a legal
sufficiency review is retained.
Paragraph 774.7(d) says: ``The Administration shall review all
Section 4(f) approvals under Sec. Sec. 774.3(a) and 774.3(c) for legal
sufficiency.'' A commenter suggested that the meaning of ``legal
sufficiency'' in the context of a Section 4(f) approval be defined. We
decline to define ``legal sufficiency'' as there are too many variable
factors considered in a legal sufficiency review. These include, but
are not limited to, the type of Section 4(f) approval under
consideration, the law of the Federal Circuit where the project is
located, and, most importantly, the facts and circumstances of the
particular project. Legal sufficiency reviews assess the Section 4(f)
documentation from the
[[Page 13378]]
perspective of legal standards, as well as technical adequacy. Because
of the inherent differences among document writers and reviewers, the
projects, court decisions in the relevant circuit, and other factors,
the comments on legal sufficiency for one project may differ in content
and format from those for another project with similar issues. This
variability makes defining a standard for the review of legal
sufficiency impractical.
Paragraph 774.7(e)--Numerous comments were received about
this section, which concerns Section 4(f) approvals of projects
developed using tiered environmental impact statements. Most commenters
thought it was helpful to clarify the different levels of detail
necessary at the different stages, although several negatively
commented on the proposal to consider the preliminary first-tier
Section 4(f) approval final. Nearly all commenters were confused by
some aspect of what the FHWA and FTA intended by authorizing a
``preliminary'' Section 4(f) approval to be made at the conclusion of
the first tier stage and a final Section 4(f) approval at the
conclusion of the second-tier stage. One commenter thought we intended
to ``immunize'' the first-tier Section 4(f) approval from
reconsideration, even in the event it should subsequently be determined
no longer valid during the second tier review. This was not our intent.
A variety of revisions were suggested to clarify the intent of this
section. All of these suggestions were considered in revising the
provision to clarify what is required.
The intent behind this section is that the relationship between the
preliminary and final Section 4(f) approval should be analogous to the
relationship between a first-tier EIS and a second-tier NEPA document.
In the same manner that a second-tier NEPA document can rely on the
conclusions of the first-tier EIS (thereby avoiding duplication), the
final Section 4(f) approval may rely upon the conclusions reached in
the preliminary Section 4(f) approval. However, both the second-tier
NEPA document and the final Section 4(f) approval must still take into
account any significant new information or relevant details that become
known during the second-level review.
If the second-tier NEPA document identifies a new or additional use
of Section 4(f) property with greater than de minimis impacts, then
additional consideration of feasible and prudent avoidance alternatives
and of potential measures to minimize harm to Section 4(f) property
will be necessary. If the second-tier NEPA document does not identify
any new or greater than expected use of Section 4(f) property, or if
there is a new or additional use of Section 4(f) property but its
impacts are determined to be de minimis under paragraph 774.3(b) of
this regulation, then the final Section 4(f) approval shall document
the determination that the new or additional use is de minimis and may
incorporate by reference the documentation developed for the first-tier
preliminary approval since the first-tier information remains valid. In
this situation, the applicant must consider whether all possible
planning to minimize harm (which is defined in section 774.17) has
occurred. Additional planning to minimize harm to a Section 4(f)
property will often be needed during the second-tier study and can be
undertaken without reopening the first-tier decision. Re-evaluation of
the preliminary Section 4(f) approval is only needed to the extent that
new or more detailed information available at the second-tier stage
raises new Section 4(f) concerns not already considered. The final
regulation clarifies the requirements for tiered Section 4(f)
approvals, consistent with the above discussion.
Paragraph 774.7(f)--One comment suggested that paragraph
774.7(f) be revised to clarify that including a required Section 4(f)
evaluation in the NEPA document is normal practice but is not
mandatory. Another comment suggested that such inclusion in the NEPA
document should be mandatory. We re-worded this paragraph to clarify
our intent, but we do not agree that including the Section 4(f)
evaluation in the NEPA document should be mandatory. There are many
instances where the timing is off due to late discoveries or other
circumstances beyond the control of the applicant. In such cases,
processing a stand-alone Section 4(f) evaluation is permissible. Thus,
applicants should endeavor to include any required Section 4(f)
evaluation within the relevant NEPA document, to the extent possible.
Another comment suggested that paragraph 774.7(b) should explicitly
state that the Section 4(f) evaluation may be included in an appendix
to the NEPA document, with a summary of the evaluation in the main body
of the document. FHWA will allow the Section 4(f) evaluation to be
included in an appendix to the NEPA document, so long as the appendices
accompany the NEPA document and the distribution and commenting
requirements of Section 4(f) will be met. The FHWA and FTA decline to
include this provision in the final rule as we believe that guidance,
not regulation, is the appropriate method for addressing the issue. The
FHWA and FTA will address it in a future update of the Section 4(f)
Policy Paper or the Technical Advisory on preparing and processing
environmental documents.
Section 774.9 Timing
This section addresses the timing of Section 4(f) approvals within
the NEPA process, and after project approval or during construction,
where necessary. There were no generally applicable comments on this
section. Comments on specific paragraphs are discussed in turn below.
Paragraph 774.9(a)--One comment asked for clarification
that the analysis of possible Section 4(f) uses during project
development is really only an evaluation of ``potential'' uses (i.e., a
proposed project does not actually use Section 4(f) property at the
time of project development). We agree, and have clarified this point
by changing the beginning of the first sentence from ``Any use of
lands'' to ``The potential use of lands.'' The same comment also
suggested changing ``shall be evaluated early in the development''
within the same sentence to ``shall be evaluated as early as
practicable in the development,'' because potential uses of Section
4(f) property can only be evaluated after a certain minimum level of
information about the proposed action and alternatives has been
developed. We agree, and we have adopted these proposed edits in this
final rule.
Paragraph 774.9(b)--One comment sought clarification that
Section 4(f) approval can be made ``in a separate Section 4(f)
evaluation'' in certain circumstances. We agree, and accordingly added
at the beginning of this paragraph ``Except as provided in paragraph
(c), for * * *.'' Paragraph 774.9(c) covers the circumstances where a
separate Section 4(f) approval is appropriate.
Another comment sought clarification that an EIS, EA, or CE must
always include the actual Section 4(f) approval. Section 4(f) approvals
are incorporated and coordinated with the NEPA process, and to the
extent practicable, the NEPA document should include all documentation
and analysis supporting the Section 4(f) approval. However, the actual
approval may be made in the subsequent decision document in order to
consider public and interagency comment submitted in response to the
NEPA document. The Section 4(f) approval and the supporting information
are always available to the public for review upon request. As such,
[[Page 13379]]
we have retained the proposed language in the final rule.
Paragraph 774.9(c)--Two comments pointed out that the
introductory clause in NPRM paragraph 774.9(c), ``If the Administration
determines that Section 4(f) is applicable'' repeats one of the
numbered subparagraphs--``(2) The Administration determines that
Section 4(f) applies to the use of a property.'' The redundant language
has been deleted.
One comment suggested replacing ``final EIS'' with ``ROD'' to
ensure consistency with references to a FONSI and a CE in paragraph
774.9(c). Both the FONSI and CE are decision documents, as is the ROD.
The FHWA and FTA decided to follow this recommendation. The change
helps clarify the timing of the separate Section 4(f) approval required
by section 774.9. Paragraph (c) applies only after the NEPA process has
been completed and the Administration has already made a Section 4(f)
determination in a decision document.
One comment recommended explicitly stating in paragraph 774.9(c)(2)
that the identification of a new property subject to Section 4(f) does
not require a separate Section 4(f) approval if the ``late
designation'' exception in paragraph 774.13(c) applies. The FHWA and
FTA agree with the substance of this comment, though not with the
suggested language. Instead, the FHWA and FTA included the phrase
``except as provided in Sec. 774.13 of this title'' at the end of the
introductory sentence of paragraph (c): ``a separate Section 4(f)
approval will be required, except as provided in Sec. 774.13, if * *
*.'' The FHWA and FTA believe that the exceptions listed in section
774.13 pertain to all three situations addressed in paragraph (c), not
exclusively to the scenario in paragraph (c)(2). Furthermore,
exceptions other than paragraph 774.13(c) dealing with ``late
designation'' could potentially apply to the circumstances described in
paragraph (c). Consequently, a more general statement concerning
exceptions is appropriate.
Another comment asked for clarification in paragraph 774.9(c)(2)
that the provision requires a separate Section 4(f) approval when the
Administration determines after project approval that Section 4(f)
applies to a new use of Section 4(f) property. That was our intent, so
we modified paragraph 774.9(c)(2) to state that ``Section 4(f) applies
to `the use of' a property.''
One comment proposed a slight revision to the provision by
substituting ``if'' instead of ``when'' before enumerating situations
necessitating a separate Section 4(f) evaluation. In the context of the
introductory sentence, the choice of the word ``if'' better articulates
the conditional nature of the applicability of paragraph (c) and is
less likely to be misconstrued. We have therefore adopted this
suggested change.
One commenter asked for definitions of the phrases ``substantial
increase in the amount of Section 4(f) property used,'' ``substantial
increase in the adverse impacts to Section 4(f) property,'' and
``substantial reduction in mitigation measures.'' These words were used
with their plain English meanings. We think that the meanings of these
phrases are self-evident, and they rely upon the context of each
particular factual situation to which this paragraph of the regulation
is being applied. Therefore, we did not provide definitions of these
phrases.
Paragraph 774.9(d)--Two comments expressed the opinion
that new or supplemental environmental documents should always be
required if a separate Section 4(f) approval is required after the
original environmental document has been processed. The proposed
regulation stated that a new or supplemental environmental document
``will not necessarily'' be required in such instances and that project
activities not directly affected by the separate Section 4(f) approval
may proceed. Paragraph 774.9(d) of this Section 4(f) regulation deals
strictly with Section 4(f) requirements and is not intended to explain
when supplementation under NEPA is required. A provision in the joint
FHWA/FTA NEPA regulation, located at 23 CFR 771.130, governs when
supplementation is required under NEPA. It requires a supplemental EIS
``whenever the Administration determines that: (1) Changes to the
proposed action would result in significant environmental impacts that
were not evaluated in the EIS; or (2) New information or circumstances
relevant to environmental concerns and bearing on the proposed action
or its impacts would result in significant environmental impacts not
evaluated in the EIS.'' The circumstances that necessitate a separate
Section 4(f) approval under paragraph 774.9(c) may or may not rise to
the level of significance described in 23 CFR 771.130(a). It should
also be noted that 23 CFR 771.130(c) provides for the preparation of
environmental studies or, if appropriate, an EA to assess the impacts
of the changes, new information, or new circumstances and determine
whether a supplemental EIS is necessary. The NEPA question must be
answered in the context of the particular new or changed impacts at
issue, while the Section 4(f) question depends on the new or changed
use of Section 4(f) property at issue. The FHWA and FTA recognize that
the changes, new information, or new circumstance requiring a separate
Section 4(f) evaluation may also require additional NEPA documentation.
Paragraph 774.9(d) now states that when, in accordance with paragraph
(c), a separate Section 4(f) approval is required and, in accordance
with 23 CFR 771.130, additional NEPA documentation is needed, these
documents should be combined for efficiency and comprehensiveness.
Further, 23 CFR 771.130(f) provides for a supplemental EIS of ``limited
scope'' when issues of concern affect only a limited portion of the
project, and it states that any project activity not directly affected
by the supplemental review may proceed. The FHWA and FTA believe that
the last sentence in paragraph 774.9(d) is consistent with 23 CFR
771.130(f) and that no change is warranted.
Paragraph 774.9(e)--Several comments expressed support for
the proposal in paragraph 774.9(e) that, when Section 4(f) applies to
archeological sites discovered during construction, the Section 4(f)
process may be expedited and the evaluation of alternatives may take
into account the level of investment already made. One commenter
objected to the expedited process and consideration of prior
investment. Another stated that this provision is too vague. However,
no substantive change was made to the language because this paragraph
continues existing policy that has worked well in past applications.
Because archeological resources are underground and can occur in
unexpected locations, it is not always possible to anticipate their
presence prior to construction. Thus, when such resources are uncovered
during construction, it is appropriate to take the scientific and
historical value of the resource into account in deciding how to
expedite the Section 4(f) process. Further elaboration in the
regulation would hamper the deliberation necessary when this
circumstance arises.
One commenter asked whether a particular applicant can enter into a
programmatic agreement with their SHPO setting forth more detailed
procedures to comply with Section 4(f) and the National Historic
Preservation Act when archeological resources are discovered during
construction. We believe that this would be appropriate and desirable
as long as the proposed
[[Page 13380]]
agreement is reviewed by the Administration through the appropriate
field office for consistency with this regulation. Another approach
that is encouraged is the inclusion of procedures for identifying and
dealing with archaeological resources in the project-level Section 106
Memorandum of Agreement under the National Historic Preservation Act.
Another comment sought clarification whether the exception in paragraph
774.13(b) for archeological resources lacking value for preservation in
place applies when the archeological resource is discovered during
construction. It does, and this has been clarified in the final rule.
Section 774.11 Applicability
This section is intended to answer many common questions about when
Section 4(f) is applicable. There were no generally applicable comments
on this section. Comments on specific paragraphs are discussed in turn
below.
Paragraph 774.11(a)--There were no major comments in
response to this paragraph. Therefore, we have retained the language as
proposed in the NPRM.
Paragraph 774.11(b)--Several comments requested
clarification on the roles of the various agencies involved in the
Section 4(f) evaluation in relation to the provisions of 23 U.S.C. 139,
which was created by SAFETEA-LU section 6002, regarding joint lead
agencies. Section 4(f) only applies to U.S. DOT agencies, but there are
transportation projects for which a non-U.S. DOT agency is the Federal
lead agency and a U.S. DOT agency is a cooperating or participating
agency. In these cases, only the U.S. DOT agency can make the Section
4(f) approval. For example, a hospital expansion project was proposed
in the midwest, utilizing funds from the U.S. Army Corps of Engineers,
a non-U.S. DOT agency that was the lead agency under NEPA, and the U.S.
Department of Housing and Urban Development, another non-U.S. DOT
agency. The FHWA had funding involvement for the relocation of roads
within the project area and was a cooperating agency. FHWA was,
however, the Federal lead agency for Section 4(f) approvals. To further
clarify this point, the word ``Federal'' was inserted in the first
sentence of this paragraph: ``When another `Federal' agency is the
Federal lead agency for the NEPA process * * *. ''
Paragraphs 774.11(c) and (d)--These paragraphs were
proposed to remain substantively unchanged from the previous
regulation. Three comments objected to paragraph (c), which presumes
that parks, refuges, and recreation areas are significant unless the
official(s) with jurisdiction determine that the entire property is not
significant. The FHWA and FTA proposed in paragraph (d) to retain the
right to review such determinations of non-significance for
reasonableness. One commenter objected to the presumption of
significance, stating ``if the official with jurisdiction over the
property chooses to not make a ruling on significance, we should assume
the property is not significant as opposed to assuming it is.'' The
same commenter felt that the Administration should not be permitted to
overturn a non-significance determination. Another commenter proposed
adding a public hearing requirement to this paragraph, and the third
comment proposed deleting the paragraph (c) on significance altogether
because it ``guts the statutory standard'' to allow the official(s)
with jurisdiction over a property to declare it non-significant. After
considering these comments, we decided to retain the language as
proposed. The statute is limited by its own terms to significant
properties ``as determined by the Federal, State, or local officials
having jurisdiction over the park, area, refuge, or site.'' 49 U.S.C.
303(c). Therefore, these paragraphs implement a provision of the
statute itself and are part of the current Section 4(f) regulations at
23 CFR 771.135(c) and (d). With respect to the presumption of
significance in paragraph (c), the FHWA and FTA decided to keep the
presumption since it continues to provide the benefit of a doubt in
favor of protecting the Section 4(f) property, which has been the FHWA
and FTA's policy on this issue for several decades.
Paragraph 774.11(e)--Several comments were received on
this paragraph, which specifies standards and procedures for
determining the applicability of Section 4(f) to historic sites. Two
comments asked for a definition of ``historic site.'' A definition was
added to section 774.17, which defines the term as ``any prehistoric or
historic district, site, building, structure, or object included in, or
eligible for inclusion in, the National Register.'' The term ``includes
properties of traditional religious and cultural importance to an
Indian tribe or Native Hawaiian organization that are included in, or
are eligible for inclusion in, the National Register.'' This definition
is consistent with the definition of ``historic property'' used in the
regulation implementing Section 106 of the National Historic
Preservation Act (36 CFR part 800).
Another comment on this paragraph stated that we should not limit
historic sites to those that are eligible for the National Register of
Historic Places, but also consider other sites that may be important
for historic purposes. We agree with the commenter that it is important
to allow for the possibility of protecting sites that are historic but
not eligible for the National Register. The proposed text of paragraph
774.11(e)(1) provides for this situation by stating that Section 4(f)
applies ``only to historic sites on or eligible for the National
Register unless the Administration determines that that the application
of Section 4(f) is otherwise appropriate.'' This provision allows the
Administration to consider sites that are historically important for
protection but are not eligible for the National Register.
Other comments stated that the section did not adequately address
``negligible'' impacts to large historic districts. We think that
changes to the proposed language to address this issue are not
warranted. For example, in the case of historic districts, the
assessment of effects under Section 106 of the National Historic
Preservation Act would be based on the effect to the district as a
whole, as opposed to individual impacts on each contributing property.
Accordingly, when an assessment of effects on the overall historic
district is performed, if the effects on the historic district are
truly negligible, then the result of the assessment of effects would be
a ``no adverse effect'' on the historic district. With appropriate
concurrences, such finding would qualify the project as having de
minimis impact and therefore not subject to further consideration under
Section 4(f). On the other hand, where contributing elements of a
historic district are individually eligible for the National Register,
an assessment of the effects on the individual properties that are
eligible would also be required. This assessment of effects would be
independent of the assessment for the overall historic district and may
or may not result in ``no adverse effect'' and de minimis impact
determinations.
Paragraph 774.11(e)(2), concerning the application of Section 4(f)
to the Interstate Highway System, was moved to this location in the
final rule (from paragraph 774.13(j) in the NPRM) so that all
provisions governing the applicability to historic sites are in one
location. One comment was received on the exemption of the Interstate
Highway System. The comment expressed concern over the inclusion of
this exemption in the proposed regulation. This exception was included
in the NPRM in response to section 6007 of SAFETEA-LU (codified at 23
U.S.C. 103(c)(5)), which states, in pertinent
[[Page 13381]]
part, that the Interstate Highway System is not considered to be a
historic site subject to Section 4(f), with the exception of those
individual elements of the Interstate Highway System formally
designated by FHWA for Section 4(f) protection on the basis of national
or exceptional historic significance. FHWA implemented this directive
through a formal process that designated 132 significant elements of
the Interstate Highway System for Section 4(f) protection after
considering input from relevant agencies and the public. See 71 FR
76019. While Section 4(f) does not apply to all other segments and
features of the Interstate Highway System, Section 4(f) continues to
apply to any historic sites located in proximity to an Interstate
Highway that are unrelated to the Interstate Highway System. As an
example, a highway project will widen and reconfigure an interchange on
the Interstate System constructed 50 years ago that has some historic
value but is not designated on the list of 132 significant elements.
Section 4(f) does not apply to the use of this interchange. However, a
historic farm, circa 1850 and on the National Register, also abuts the
project. Section 4(f) would apply to the project's use of the historic
farm because the farm is not part of the Interstate Highway System and
its historic significance is unrelated to the Interstate Highway
System.
Paragraph 774.11(f)--One commenter requested specific
procedures to be used for the identification of archaeological
resources. The FHWA and FTA decided not to include procedures for
identifying archaeological resources in this regulation because it is
beyond the scope of this rulemaking. The FHWA and FTA believe that a
good faith effort must be made to identify archaeological resources,
but specifying procedures to be used in each situation is not
appropriate in this regulation.
Paragraph 774.11(g)--This paragraph of the final rule was
added to clarify the applicability of Section 4(f) to Wild and Scenic
Rivers. The provision is consistent with longstanding FHWA and FTA
policy as set forth in FHWA's Section 4(f) Policy Paper. It was
inserted in response to the comments of the U.S. Department of the
Interior. The provision limits the applicability of Section 4(f), in
accordance with the statutory language, to those portions of Wild and
Scenic Rivers that are publicly owned and serve a function protected by
Section 4(f). The paragraph states ``Section 4(f) applies to those
portions of federally designated Wild and Scenic Rivers that are
otherwise eligible as historic sites, or that are publicly owned and
function as, or are designated in a management plan as a significant
park, recreation area, or wildlife and waterfowl refuge. All other
applicable requirements of the National Wild and Scenic Rivers Act must
be satisfied, independent of the Section 4(f) approval.''
Paragraphs 774.11(h) and (i)--These paragraphs of section
774.11 concern the applicability of Section 4(f) to properties formally
reserved for future transportation projects but temporarily serving a
Section 4(f) purpose. One commenter noted that the NPRM had addressed
interim Section 4(f) activity on property reserved for transportation
use and the concurrent or joint development of parks, recreation areas,
or refuges with transportation facilities in the same paragraph. That
commenter suggested that these two topics should be separated because
the NPRM was confusing. As these issues have been traditionally treated
separately, the FHWA and FTA agree with this suggestion, and the topics
of interim Section 4(f) activities and joint planning are now addressed
in paragraphs 774.11(g) and (h), respectively.
Another commenter was concerned with the term ``temporary
recreational activity'' in the first sentence of this paragraph of the
proposed rule, explaining that the word ``temporary'' could be
construed to refer only to uses of relatively short duration. The FHWA
and FTA have never imposed any time limit on how long a future
transportation corridor can be made available for recreation while it
is not yet needed for transportation, and there is no public purpose in
limiting the time during which interim recreational activities may be
permitted on the future transportation corridor.
The commenter was also concerned that the proposed language did not
consider other non-recreational temporary uses of a future
transportation corridor, for example as a wildlife or waterfowl refuge.
The FHWA and FTA decided to address these comments by clarifying the
wording of the section. The language in the final rule says: ``[w]hen a
property formally reserved for a future transportation facility
temporarily functions for park, recreation, or wildlife and waterfowl
refuge purposes in the interim, the interim activity, regardless of
duration, will not subject that property to Section 4(f).'' The
temporary activity is not protected under Section 4(f) in this case,
regardless of whether the property owner has authorized the interim use
of the transportation land or has simply not fenced the property off or
taken other measures to prevent trespassing.
Another comment suggested that allowing temporary recreational
activity on a reserved transportation corridor is an exception to
Section 4(f) and therefore should be moved from section 774.11,
``Applicability,'' to section 774.13, ``Exceptions.'' We think that the
proposed paragraph does not set forth an exception to Section 4(f), but
rather explains the applicability of Section 4(f) in certain
situations. Therefore, this provision was retained in the
``Applicability'' section.
Another comment addressed the second example of joint planning
between two or more agencies with jurisdiction over the transportation
project and Section 4(f) property. The comment suggested that a broader
range of scenarios of joint planning be addressed in the rule, and
suggested the example be revised to indicate that such planning could
be done concurrently or in consultation between the agencies. It
appears the concern involved the need for formal coordination, though
the word ``formal'' did not appear in the NPRM. Since this paragraph of
the rule deals with joint planning of transportation projects and
Section 4(f) properties, any instance of concurrent planning would
qualify for consideration of whether Section 4(f) applied. The basis
for determining the compatibility of jointly-planned transportation
projects and Section 4(f) properties, however, depends heavily upon the
degree to which the multiple agencies involved have consulted on
various aspects of the proposals. The purpose of this provision had
been accurately described as:
Section 4(f) is not meant to force upon a community, wishing to
establish a less than pristine park affected by a road, the choice
between a pristine park and a road. A community faced with this
choice might well choose not to establish any park, thus frustrating
Section 4(f)'s goal of preserving the natural beauty of the
countryside.
See Sierra Club v. Dept. of Transp., 948 F.2d 568, 574-575 (9th Cir.
1991). The consultation that occurs, formal or otherwise, will be
examined on a case-by-case basis in light of this purpose to determine
if a constructive use occurs when the jointly-planned transportation
project is eventually proposed for construction. We have retained the
proposed language in the final rule.
Section 774.13 Exceptions
This section sets forth various exceptions to the otherwise
applicable Section 4(f) requirements. The exceptions either are founded
in statute or reflect longstanding FHWA and FTA policies governing when
to apply Section 4(f). The exceptions are limited
[[Page 13382]]
in number and scope and do not compromise the preservation purpose of
the statute, which is to ``preserve the natural beauty of the
countryside and public park and recreation lands, wildlife and
waterfowl refuges, and historic sites.''
One comment asked for clarification whether an exception for a
project under this regulation would also provide an exemption for the
project from compliance with the NEPA and the National Historic
Preservation Act. The answer is no. The exceptions in Section 774.13
relate solely to the applicability of, and requirements for, Section
4(f) approval. All other applicable environmental laws must still be
addressed.
Several comments favored additional exceptions beyond those
proposed by the FHWA and FTA. One such comment suggested that an
exception be added for active historic railroads and transit systems,
along the lines of the exemption for the Interstate Highway System that
was included in section 6007 of SAFETEA-LU. The FHWA and FTA decided
not to pursue the suggested exception for several reasons. First and
foremost, the FHWA and FTA do not have statutory authority for such an
exception, as it was not included in section 6007. Second, there is
already an exception in paragraph 774.13(a) for the restoration,
rehabilitation, or maintenance of historic transportation facilities
when there is no adverse effect on the historic qualities of the
facility that caused it to be on or eligible for the National Register.
For many FTA-funded maintenance or rehabilitation projects on historic
transit systems, such as those in New York, Chicago, and Boston,
system-specific programmatic agreements with the relevant SHPO under
Section 106 have specified the conditions for a ``no adverse effect''
determination and, as a logical consequence, the conditions for the
Section 4(f) exception noted above. Finally, when the project does
result in an adverse effect and the traditional Section 4(f) evaluation
process applies, the demonstration that there is no feasible and
prudent avoidance alternative that would accomplish the project purpose
of keeping the historic transportation facility in operation is usually
straightforward. Therefore, the applicant in such a case can focus on
how to minimize the harm to historic features of the transportation
facility and still accomplish the project's purpose. Accordingly, the
FHWA and FTA do not agree that the creation of a new exception for
active, historic railroads and transit systems is necessary or
permissible.
Another comment suggested adding an exception for all ``local or
state transportation projects that have not or will not receive U.S.
Department of Transportation funds for construction of the project.''
In support of this proposal, the commenter cited a number of court
cases holding that Section 4(f) requirements are triggered when a U.S.
DOT agency approves a transportation project receiving Federal
construction funds but not when the project is locally funded. The FHWA
and FTA decided not to incorporate the proposed exception because
Federal funding is not the sole determinant of Section 4(f)
applicability. Section 4(f) may be implicated in other Administration
approval actions not involving the disbursement of U.S. DOT funds when
there is sufficient control over the project. For example, the U.S. DOT
approval of a new interchange on the Interstate Highway System
requiring the use of adjacent parkland may trigger Section 4(f) even if
Federal funding is not involved. The overwhelming majority of projects
not receiving U.S. DOT funding, including those in the court cases
cited by the commenter, do not require any Administration approval at
all and therefore would not trigger Section 4(f).
Comments on specific paragraphs within Section 774.13 are discussed
in order below.
Paragraph 774.13(a)--Paragraph 774.13(a) is an exception
from the Section 4(f) process for projects involving work on a
transportation facility that is itself historic. The FHWA and FTA's
policy for several decades has been that when a project involves a
historic facility that is already dedicated to a transportation
purpose, and does not adversely affect the historic qualities of that
facility, then the project does not ``use'' the facility within the
meaning of Section 4(f). If there is no use under Section 4(f), then
its requirements do not apply. This interpretation is consistent with
the preservation purpose of Section 4(f) and with caselaw on this
issue.
Two comments recommended revising this section to clarify that the
exception for restoration, rehabilitation, or maintenance of
transportation facilities applies only if the Administration makes a
finding of ``no adverse effect'' in accordance with the consultation
process required under Section 106. One comment pointed out that other
interested parties besides the official(s) with jurisdiction may be
participating in the Section 106 consultation. We agree and revised the
paragraph to clarify these points.
Paragraph 774.13(b)--Paragraph 774.13(b) is an exception
from the Section 4(f) process for those archeological sites whose
significance lies primarily in the historical or scientific information
or data they contain. The exception does not apply when the
Administration determines that a site is primarily important for
preservation in place (e.g., to preserve a major portion of the
resource in place for the purpose of public interpretation), or that
the site has value beyond what may be learned by data recovery (e.g.,
as a result of considerations that may arise when human remains are
present). This distinction between the primary values for what can be
learned by data recovery versus the primary value for preservation in
place has been central to the Administration's implementation of the
statute for archeological sites for several decades.
The intent of the exception is not to narrow unnecessarily the
application of Section 4(f) when dealing with archeological sites, but,
rather, to apply the protections of Section 4(f) only in situations
where the preservation purpose of the statute would be sustained.
Frequently, the primary information value of an archeological resource
can only be realized through data recovery. In those cases, the primary
mandate of Section 4(f)--to investigate every feasible and prudent
alternative to avoid the site--would serve no useful purpose.
Conversely, where the artifacts would lose essential aspects of the
information they might yield if removed from the setting, or if the
site is complex and it is not reasonable to expect to be able to
recover much of the data resident there, or where technology does not
exist to preserve the artifacts once removed from the ground, requiring
the applicant to search for a feasible and prudent avoidance
alternative is consistent with the statute.
One commenter expressed the view that in light of the 1999 and 2000
amendments to the Section 106 regulations concerning archeological
resources, ``the outdated approach to archeology reflected in the
Section 4(f) regulations is inconsistent with the National Historic
Preservation Act (NHPA).'' Transportation projects subject to Section
4(f) must also comply with the NHPA, an entirely different statute that
also affords certain protection to historic sites. The NHPA has its own
very detailed regulations that must be followed. An ``adverse effect''
to an archeological site under the NHPA is not the same as a ``use'' of
an archeological site under Section 4(f).
[[Page 13383]]
The comment did not propose specific revisions to the proposed
regulation, but generally recommended that consideration be given to
whether an archeological site may have ``broader religious or cultural
significance to any Indian tribe(s),'' and that the Administration
should be required to ``defer to the SHPO's or THPO's views regarding
significance.'' We carefully considered these suggestions and decided
to revise the wording in the final rule in response to the concerns
raised. We agree that deference to the expertise of SHPOs and THPOs is
warranted in determining whether an archeological site is worthy of
preservation in place or is important chiefly for what could be learned
through data recovery. Accordingly, the final rule requires that
``[t]he official(s) with jurisdiction over the Section 4(f) resource
have been consulted and have not objected to the Administration finding
* * *'' regarding the relative importance of data recovery versus
preservation in place.
Paragraph 774.13(c)--This paragraph is an exception to the
requirement for Section 4(f) approval for parks, recreational areas,
wildlife and waterfowl refuges, and historic sites that are designated
or determined to be significant late in the development of a
transportation project. Late designation is not the same thing as a
late discovery of a Section 4(f) property. This exception, which has
been FHWA and FTA policy for several decades, applies only if a good
faith effort was made during the NEPA process to identify all
properties eligible for Section 4(f) protection. The purpose of the
exception is to provide reasonable finality to the environmental review
phase of project development.
Many comments were received on the late-designation exception. One
comment asserted that no exception is warranted until construction has
begun in order to provide maximum protection to Section 4(f)
properties. Another comment objected to the exception in the case of
projects ``languishing'' in project development for long periods of
time during which time a resource on the project site might be
legitimately designated as a new or significant Section 4(f) property.
In this commenter's view, such projects should not be allowed to
proceed without a new Section 4(f) evaluation, even if the property in
question was acquired by a transportation agency for transportation
purposes prior to the new designation. The commenter suggested limiting
the exception by including a ``staleness'' provision mandating that if
a planned transportation project is not constructed within a specified
period of time (three years was suggested) the exception would not
apply and a new evaluation under Section 4(f) would be required. At the
opposite end of the spectrum, we received comments asserting that
project opponents frequently wait until late in project development to
assert that properties are eligible for Section 4(f) protection, solely
for the purpose of delaying the project. Several modifications were
suggested to guard against that possibility. One such proposal
suggested broadening this exception so that an applicant would only
need to establish the project's location and complete the NEPA process
in order to benefit from the late-designation exception. The comment
proposed that the applicant not be required to take the additional step
of acquiring the right-of-way for this exception to apply.
The FHWA and FTA decided not to adopt any of the suggested changes
to the proposed regulation. The exception is intended to balance
competing interests--protecting Section 4(f) properties while
facilitating timely project delivery. The exception provides that ``the
Administration may permit a project to proceed without consideration
under Section 4(f) if the property interest in the Section 4(f) land
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.'' These conditions will ensure that the initial Section
4(f) approval was proper and that the project has progressed far enough
to warrant special treatment. The acquisition of right-of-way typically
is the last step of project development prior to construction.
Conversely, if the right-of-way has not yet been acquired prior to the
redesignation or change in significance, then the exception does not
apply. Recognizing the variability in development schedules among
different transportation projects, we did not include any arbitrary
time limits. A ``staleness'' provision would often delay project
implementation unnecessarily and may compromise project plans after
considerable investment in engineering design and land acquisition. The
regulatory language draws the line at purchase of the property to
ensure that, prior to the redesignation or change in significance, the
applicant has completed the NEPA process, has made a good faith effort
to address Section 4(f) concerns, and has advanced the project beyond
preliminary engineering into actual implementation activities. We also
note that if, after the completion of the NEPA process and Section 4(f)
approval, the project has to be modified in a way that would use newly
designated Section 4(f) property, the applicant would be obligated to
conduct a separate Section 4(f) evaluation in accordance with paragraph
774.9(c).
Lastly, a comment suggested that the FHWA and FTA should ``ensure
internal consistency'' between this provision and Paragraph
774.15(f)(4), which provides that there is no constructive use if the
Section 4(f) designation occurs after either a right-of-way acquisition
or adoption of project location through the approval of a final
environmental document. We do not agree. The ``late designation''
exception in paragraph 774.13(c), which applies generally to both
actual and constructive use, is distinct from the narrower exception in
paragraph 774.15(f)(4), which addresses proximity impacts of a
transportation project and applies only to constructive use.
Several comments suggested removing or modifying the sentence at
the end of paragraph 774.13(c) that, as worded in the NRPM, would
preclude the use of the late-designation exception where a historic
property is close to, but less than, 50 years of age. One commenter
pointed out that the sentence would perpetuate the false assumption
that properties over 50 years old are automatically eligible for the
National Register. Another commenter stated that the provision is
confusing because there is no parallel in Section 106 of the National
Historic Preservation Act, and the sentence could be read to
effectively extend Section 4(f) protections to properties that are not
necessarily historically significant under Section 106. The commenter
also pointed out the potential confusion caused by having an exception
to the exception. The FHWA and FTA agree that this sentence was
confusing and has modified it to say: ``if it is reasonably foreseeable
that a property would qualify as eligible for the National Register
prior to the start of construction, then the property should be treated
as a historic site for the purposes of this section.'' The
determination whether it is reasonably foreseeable should take into
account the possibility that changes in the property beyond the
Administration's control might reduce its eligibility, as well as the
sometimes unpredictable nature of construction schedules.
Paragraph 774.13(d)--Paragraph 774.13(d) is an exception
to the requirement for Section 4(f) approval for temporary occupancies
of Section 4(f)
[[Page 13384]]
property. This exception is limited to situations where the official
with jurisdiction over the resource agrees that a minor, temporary
occupancy of Section 4(f) property will not result in any permanent
adverse impacts and will not interfere with the protected activities,
features, or attributes of the property, the property will be fully
restored, and the ownership of the property will not change. This
exception, which has been part of the Section 4(f) regulation since
1991, is founded on the FHWA and FTA's belief that the statute's
preservation purpose is met when the Section 4(f) land, though
temporarily occupied, is not permanently incorporated into a
transportation facility and is returned to the same or better condition
than it was found, with the consent of the official with jurisdiction
over the Section 4(f) resource. Some construction-related activities
taking place on Section 4(f) property may be so minor in scope and
duration that its continued preservation is in no way impeded. Using
publicly owned land for construction easements can result in less
disruption to the surrounding community and often may result in an
enhancement of the protected resource, such as landscaping,
installation of new play equipment, or other improvement following
construction.
A commenter asked whether a temporary occupancy not falling within
this exception could be treated as a use with de minimis impact if the
Section 4(f) land would be fully restored after construction. The
answer is yes, a temporary occupancy that is determined to be a Section
4(f) use may qualify for a de minimis impact determination by the
Administration if the requirements for such determination are met. This
circumstance would arise when one or more of the criteria for the
temporary-occupancy exception are not met, but the requirements for a
de minimis impact determination are met. De minimis impact
determinations related to temporary occupancies are addressed in more
detail in the joint FHWA/FTA ``Guidance for Determining De Minimis
Impacts to Section 4(f) Resources,'' December 13, 2005.
One comment asserted that excepting ``temporary'' occupancies of
land from the provisions of Section 4(f) would be problematic for
``megaprojects'' (usually defined as projects with a total estimated
cost of more than $500 million) whose construction period might stretch
over a decade or more. Another commenter expressed the opinion that
occupation of Section 4(f) properties during such projects should not
be considered ``temporary'' even if the occupancy period is less than
the total time needed for construction. We agree that in some
circumstances a very long-term occupancy of Section 4(f) properties,
even if shorter in duration than the total time it takes to construct a
particular project, could be contrary to the preservation purpose of
Section 4(f) and, therefore, constitute a use. However, we did not
change the relevant text (``[d]uration must be temporary, i.e., less
than the time needed for construction of the project'') because the
regulation imposes several other stringent conditions that would be
difficult to satisfy in the case of a long-term occupancy. These other
stringent conditions include the requirement that the occupancy not
interfere with the activities, features, and attributes that qualify
the property for Section 4(f) protection, and that the official with
jurisdiction over the Section 4(f) property concur in its being
occupied for this period of time.
Another commenter recommended elimination of the conditions for the
``temporary occupancy'' of land. These conditions, the commenter
argues, create a major burden for determining whether the temporary-
occupancy exception applies. Another comment recommended changing the
wording in paragraph 774.13(d)(1) from ``less than the time needed for
construction'' to ``no greater than the time needed for construction.''
This change would allow the temporary occupancy of land to continue for
the entire duration of construction. After carefully considering all of
the comments, we decided that no change to the proposed language of
paragraph 77