Section 4(f) Compliance

1
Section 4(f) Compliance
From De Minimis Impacts to Net Benefits
Lamar S. Smith, CEP Project Development and
Environmental Review
2
De Minimis Impact Guidance

• Criteria for parks, recreation areas, and refuges
  and historic properties
• All classes of action
• Individual resource not project basis
• Impact after mitigation / enhancement
• Section 4(f) process complete upon Division
  Administrators finding (or proposed finding)

3
For Historic Properties

1. SHPO and/or THPO written concurrence in Section
   106 no adverse effect" or "no historic
   properties affected
2. SHPO and/or THPO is informed of FHWAs intent to
   make de minimis impact finding based on the
   Section 106 concurrence
3. FHWA has considered the views of the consulting
   parties in Section 106 consultation

4
Historic Properties

• Project consultation
• Inform SHPO and/or THPO at time of request for
  concurrence in Section 106 determination
• Programmatic agreement consultation
• Project by project involvement
• Inform SHPO and/or THPO with written and signed
  notice appended to existing PA

5
For Parks, Rec. Areas,

1. 4(f) use, after mitigation / enhancement, does
   not adversely affect Section 4(f) activities,
   features and attributes
2. Officials with jurisdiction are informed of
   FHWAs intent to make de minimis impact finding
   based on written concurrence
3. Public has been given an opportunity to review
   and comment on the effects to the Section 4(f)
   resource

6
Post Guidance Clarification

• Role of de minimis impacts in alternative
  selection process when no feasible and prudent
  avoidance alternatives exist
• Opportunity for public review and comment for
  some CE projects
• Documentation and legal sufficiency review
  requirements
• What routine consultation with the DOI means
• Using section 106 programmatic agreements

7
Implementation Study

• First 3 years of Section 6009 implementation
  (8/10/08)
• Update by 3/1/2010
• Independent review by TRB
• Study plan, methodology, and associated
  conclusions
• Processes and resulting efficiencies
• Number, location, size, and cost of projects with
  de minimis impact findings
• Post-construction effectiveness of mitigation

8
Data To Date

• Only 38 FHWA Divisions reported
• 16 States
• 47 projects
• 84 de minimis impact (or proposed) findings
• 75 Historic sites
• 8 Parks
• 1 Historic Park

9
Net Benefit vs. De minimis

• 4(f) evaluation vs. a Finding
• Range of effects vs. impact threshold
• Public involvement vs. opportunity for public
  review and comment
• Similar coordination requirements
• Agreement / concurrence essential
• Mitigation / enhancement important
• No legal sufficiency review
• No routine circulation or DOI comment

10
Net Benefit Programmatic

• Has been used
• ? Times
• ? States / Divisions
• ? Resources
• Have an example to share? Send it to me.