SAFETEA-LU Section 6009
Implementation Study
Phase I Report — February 2010
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U.S. Department of Transportation
Federal Highway Administration
Office of Project Development and Environmental Review
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U.S. Department of Transportation
Federal Transit Administration
Office of Human and Natural Environment
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Preface/Acknowledgments
This Report to Congress was prepared by a project team comprised of employees of the U.S. Department of Transportation Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and John A. Volpe National Transportation Systems Center (Volpe Center). The project team wishes to thank the numerous stakeholders who graciously offered their time, knowledge, and guidance in the development of this implementation study.
List of Figures
List of Tables
abbrs, Abbreviations, and Definitions
Executive Summary
Introduction
Background
Report Purpose
Report Contents
Phase I Evaluation Methodology
SAFETEA-LU Section 6009 Implementation Study Plan
Selection of Projects with De Minimis Impact Determinations
Interview Strategy
Study Data Quality and Research Limitations
De Minimis Impact Determinations Inventory
Study Findings
Efficiencies Resulting From the De Minimis Impact Provisions
Time Implications
Cost Implications
Post-Construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the De Minimis Impact Provision
Resource Protection Outcomes
Transportation Project Outcomes
Institutional Considerations
Feasible and Prudent Avoidance Alternatives Standards
SAFETEA-LU Requirements
DOT's Rulemaking Process
Notice of Proposed Rulemaking
Public Comments on the NPRM
Final Rule
Conclusions
Appendix A. Flowcharts of Section 4(f) Process and Section 4(f) De Minimis Impact Determination Process for Historic Properties, Parks, Recreation Areas, and Wildlife and Waterfowl Refuges
Appendix B. SAFETEA-LU Section 6009 Implementation Study Plan
Appendix C. TRB Letter Report
Appendix D. DOT Response to TRB Phase I Letter Report
Appendix E. Interview Selection Strategy and Interview Recommendation
Appendix F. Pre-interview Questionnaire for Transportation Agencies and Interview Guides
List of Figures
| Figure 1 |
Total Reported Projects with De Minimis Impact Determinations by State, FHWA and FTA (as of April 2009) |
| Figure 2 |
Number of De Minimis Impact Determinations per Transportation Project Type (as of April 2009) |
| Figure 3 |
Projects with De Minimis Impact Determinations by Resource Type (as of April 2009) |
| Figure 4 |
Share of De Minimis Impact Determinations by NEPA Class of Action (as of April 2009) |
| Figure 5 |
Effect of the De Minimis Impact Provision on the Timeliness of Completing the Section 4(f) Requirements |
| Figure 6 |
Effect of the elimination of the requirement to coordinate with and obtain comments from DOI on the time associated with completing the Section 4(f) process |
| Figure 7 |
Effect of the elimination of the FHWA/FTA legal sufficiency review process on the time associated with completing the Section 4(f) process |
| Figure 8 |
Effect of the elimination of the requirement to design and evaluate alternatives on the time associated with completing the Section 4(f) process |
| Figure 9 |
Effect of the addition of the public comment and review requirements (for parks, recreation areas, and refuges) on the time associated with completing the Section 4(f) process |
| Figure 10 |
Effect of being able to rely on a Section 106 determination to reach a Section 4(f) determination (for historic properties) on the time associated with completing the Section 4(f) process |
| Figure 11 |
Effect of the De Minimis Impact Provision on the Cost of Completing the Section 4(f) Requirements |
| Figure 12 |
Effect of the De Minimis Impact Provision on Protection of Section 4(f) Resources |
| Figure 13 |
Effect of the De Minimis Impact Provision on Transportation Project Outcomes |
List of Tables
| Table 1 |
Comparison of De Minimis Impact Inventory (as of March 21, 2008) — Population, Original Interview Sample, and Final Interview Sample |
| Table 2 |
Characteristics of Projects Studied |
| Table 3 |
Class of Action, Cost, and Size of Projects with De Minimis Use Impact Determinations by Property Type (as of April 2009) |
| Table 4 |
De Minimis Impact Determinations by Highway Project Type |
abbrs, Abbreviations, and Definitions
| AASHTO |
American Association of State Highway and Transportation Officials: A nonprofit, nonpartisan association representing highway and transportation departments in the 50 States, the District of Columbia, and Puerto Rico. |
| ACHP |
Advisory Council on Historic Preservation: An independent Federal agency that promotes the preservation, enhancement, and productive use of our Nation's historic resources, and advises the President and Congress on national historic preservation policy. |
| CE |
Categorical Exclusion: A category of actions which do not individually or cumulatively have a significant effect on the human environment. |
| CFR |
Code of Federal Regulations: The codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government. |
| DOI |
U.S. Department of the Interior |
| DOT |
U.S. Department of Transportation |
| EA |
Environmental Assessment: Under NEPA, when the significance of impacts of a transportation project proposal is uncertain, an EA is prepared to assist in making this determination. |
| EIS |
Environmental Impact Statement: NEPA requires Federal agencies to prepare EISs for major Federal actions that significantly affect the quality of the human environment. An EIS is a full disclosure document that details the process through which a transportation project was developed, includes consideration of a range of reasonable alternatives, analyzes the potential impacts resulting from the alternatives, and demonstrates compliance with other applicable environmental laws and executive orders. |
| FHWA |
Federal Highway Administration |
| FR |
Federal Register: The official daily publication of rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents. |
| FRA |
Federal Railroad Administration |
| FTA |
Federal Transit Administration |
| HUD |
U.S. Department of Housing and Urban Development |
| NCSHPO |
National Conference of State Historic Preservation Officers: A professional association of the State government officials who carry out the national historic preservation program as delegates of the Secretary of the Interior. |
| NEPA |
National Environmental Policy Act: Signed into law in 1970, NEPA established a supplemental mandate for Federal agencies to consider the potential environmental consequences of their proposals, document the analysis, and make this information available to the public for comment prior to implementation. |
| NPRM |
Notice of Proposed Rulemaking: Notice that precedes the issuance of a final rule, which is an agency process for formulating, amending or repealing a rule. |
| Overton Park |
Citizens to Preserve Overton Park v. Volpe: A decision by the Supreme Court of the United States that established the basic legal standard for compliance with Section 4(f). |
| PA |
Programmatic Agreement: A document that spells out the terms of a formal, legally binding agreement between a State department of transportation (DOT) and other State and/or Federal agencies. |
| SAFETEA-LU |
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users: The statute that authorizes the Federal surface transportation programs for highways, highway safety, and transit for the 5-year period 2005-2009.
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| SCOE |
AASHTO Standing Committee on the Environment |
| Section 4(f) |
49 U.S.C. § 303 and 23 U.S.C. 138: This statute protects public parks, recreational areas, wildlife and waterfowl refuges, and public and private historical sites from use by proposed transportation projects unless (1) There is not feasible and prudent alternative to the use of such land and the action includes all possible planning to minimize harm to the property resulting from the use, or (2) The use is determined to have a de minimis impact on the property. |
| Section 106 |
National Historic Preservation Act of 1966, Section 106, requires Federal agencies to take into account the effects that their federally funded activities and programs have on significant historic properties. 16 U.S.C. § 470(f) |
| Section 6009 |
SAFETEA-LU Section 6009 Parks, Recreation Areas, Wildlife and Waterfowl Refuges and Historic Sites: This statute section made the first substantive revision to Section 4(f) since the Department of Transportation Act of 1966. 49 U.S.C. § 303; 23 U.S.C. § 138 |
| SHPO |
State Historic Preservation Officer: This person administers the national historic preservation program at the State level, including Section 106. |
| THPO |
Tribal Historic Preservation Officer: This person assumes the responsibilities of the SHPO for purposes of Section 106 compliance on tribal lands. |
| TRB |
Transportation Research Board: This board is one of six major divisions of the National Research Council. |
| USDA |
U.S. Department of Agriculture |
| DOT |
U.S. Department of Transportation |
Executive Summary
This document, Phase I Report — February 2010 (Phase I), presents findings from the first of two study phases to assess the implementation of Section 6009 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Section 6009(c) requires the U.S. Department of Transportation (DOT) to conduct a study and issue a report no sooner than August 10, 2008, on the implementation of the amendments made by SAFETEA-LU to Section 303 of title 49 and Section 138 of title 23, commonly referred to as Section 4(f) from the Department of Transportation Act of 1966. Section 4(f) protects publicly owned parks, recreational areas, wildlife and waterfowl refuges, and public and private historical sites from use by transportation projects unless DOT determines that there is no feasible and prudent avoidance alternative and that all possible planning to minimize harm has occurred.
Section 6009 of SAFETEA-LU amended Section 4(f) to: (1) clarify the factors considered and the standards applied in determining the prudence and feasibility of alternatives that avoid uses of Section 4(f) properties; and (2) provide a simplified approval process of projects that have de minimis impacts on Section 4(f) property. De minimis impact, in general terms, means that the use of the transportation project will not adversely affect the activities, features, and attributes of the Section 4(f) property.
Phase I evaluates how the de minimis impact provision has been applied nationwide since it was enacted by SAFETEA-LU in August 2005. It also reviews the implementation process that DOT used to clarify the factors to consider and standards to apply for determining the “prudence and feasibility” of alternatives to avoid the use of a Section 4(f) property. A second phase of the study will provide an update to the de minimis impact provision evaluation here as well as an assessment of the application of the new prudent and feasible standards.
The Phase I Section 6009 implementation study findings, which are based on in-depth, qualitative information from a select group of stakeholders, support the perception that the de minimis impact provision can streamline the Section 4(f) process for projects while maintaining protection of those resources. Although the preliminary data do not yet support efficiency gains, some of the officials with jurisdiction over Section 4(f) properties interviewed reported benefits from the transportation agencies’ motivation to protect the resource knowing that a de minimis impact determination could mean a streamlined transportation project. Transportation agencies participating in the study have found that use of the de minimis provision increased their coordination with stakeholders. The result is that the agencies have learned more about the activities, features, and/or attributes of the Section 4(f) resources, which has provided an incentive for them to design projects sensitive to those elements in order to make a de minimis impact determination.
The Phase I evaluation results suggest that the de minimis impact provision can enable transportation agencies to better balance the delivery of transportation projects with protection of publicly owned parks, recreation areas, wildlife and waterfowl refuges, and public and private historical sites. In addition, for the sample analyzed, the de minimis impact provision has simplified the fulfillment of Section 4(f) requirements, particularly in cases where the official with Section 4(f) jurisdiction initiates or sponsors the transportation project.
Phase I interviews and supplementary surveys were used to identify the effectiveness and efficiencies resulting from implementation of the Section 6009 amendments. This approach complies with the requirement in SAFETEA-LU Section 6009 to report this assessment 3 years after the date of enactment of the Act and again by March 1, 2010. Based upon these surveys and interviews and the sample of projects analyzed, DOT concludes the following:
Efficiency Resulting from the De Minimis Impact Provision
- The de minimis impact provision has predominately improved transportation agencies’ timeliness in fulfilling Section 4(f) requirements. A majority (79 percent) of the 42 surveyed transportation officials reported that the de minimis impact provision has reduced the amount of time necessary to complete the Section 4(f) process.
- The officials with Section 4(f) jurisdiction who were interviewed, including State Historic Preservation Officers’ staff (SHPOs) and park, recreation, and wildlife and waterfowl refuge officials, all reported that the de minimis impact provision has not changed the time associated with fulfilling the Section 4(f) requirements as compared to other Section 4(f) processing options.
- The transportation agencies’ interviewed indicated that the de minimis impact provision's elimination of the requirement to design and evaluate avoidance alternatives has generally reduced the time necessary to complete the Section 4(f) process. Forty-five percent of transportation agencies reported that the elimination of the requirement to design and evaluate Section 4(f) resource avoidance alternatives has significantly reduced the time to complete the Section 4(f) process, while 36 percent reported that it somewhat reduced completion time.
- Fifty-seven percent of the surveyed transportation officials reported that the de minimis impact provision has decreased the cost of completing the Section 4(f) process. No respondents reported that costs have increased as a result of the de minimis impact process.
Post-Construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the De Minimis Impact Provision
- According to the majority of transportation officials surveyed, the de minimis impact provision has maintained protection of Section 4(f) resources as compared to alternative Section 4(f) processing options (i.e. individual Section 4(f) evaluations and programmatic Section 4(f) evaluations). Most (76 percent) reported that the de minimis provision has had no reduction in the protection of the Section 4(f) resource. Ten percent indicated that it has improved resource protection.
- Four of 10 SHPOs reported that the de minimis impact provision has enhanced consultation and coordination between them and the transportation agency to minimize impacts to Section 4(f) properties. According to these four SHPOs, the de minimis impact provision is another “tool in the toolbox” to encourage transportation agencies to design projects that have fewer adverse impacts to resources.
- None of the five officials with jurisdiction over parks, recreational areas, and wildlife and waterfowl refuges that were interviewed have found that the de minimis impact provision reduces the protection of Section 4(f) resources as compared to other Section 4(f) processing options.
- Officials with Section 4(f) jurisdiction generally have benefited from the transportation agencies‘ motivation to protect the Section 4(f) resource, knowing that a de minimis impact determination could mean a streamlined transportation project. Also, park and recreation officials might have benefitted from an increased involvement in the Section 4(f) process. Because the de minimis impact provision has encouraged improved coordination, transportation agencies have learned more about the activities, features, and/or attributes of park resources. Some transportation agencies reported that this provision is an incentive to design projects sensitive to those elements in order to make a de minimis impact determination.
- Fifty-five percent of the transportation agencies surveyed reported that the de minimis impact provision has not changed the transportation project outcomes. Most projects where the de minimis impact provision was applicable had such minor impacts to the Section 4(f) resources that additional minimization or mitigation efforts, or project design changes, were not required to make the determination. Thirty-six percent of transportation officials noted that project design typically did not change as a result of the de minimis impact provision, but that the process enabled the Section 4(f) process to be completed more quickly and at a reduced cost.
- A few transportation-agency staff and officials with jurisdiction indicated that the de minimis impact provision provides a common sense approach to fulfilling Section 4(f) requirements for projects that clearly have no adverse effect on Section 4(f) resources.
Introduction
Background
Established in the Department of Transportation Act of 1966, Section 4(f) protects publicly owned parks, recreational areas, wildlife and waterfowl refuges, and public and private historical sites from use by transportation projects unless the DOT determines that there is no feasible and prudent avoidance alternative and that all possible planning to minimize harm has occurred. In 2005, amendments were made to Section 4(f) law to: (1) clarify the factors considered and the standards applied in determining the prudence and feasibility of alternatives that avoid uses of Section 4(f) properties; and (2) provide a simplified approval process of projects that have de minimis impacts on Section 4(f) property.
When a project proposes to use resources protected by Section 4(f), a Section 4(f) evaluation must be prepared. There are three options for processing proposed uses of Section 4(f) property: (1) individual Section 4(f) evaluations, (2) programmatic Section 4(f) evaluations, or (3) a determination of de minimis impact.
An individual Section 4(f) evaluation must identify and evaluate alternatives, both location and design shifts that entirely avoid the Section 4(f) resource, and if unavoidable, analyze all possible measures that are available to minimize the proposed action's impacts on the Section 4(f) resource. As part of the individual Section 4(f) evaluation, coordination with the public official having jurisdiction over the Section 4(f) resource and with the Department of the Interior (DOI) is required, and with the U.S. Department of Agriculture (USDA) and the U.S. Department of Housing and Urban Development (HUD), as appropriate. Then, for highway and transit projects, an FHWA or Federal Transit Administration (FTA) lawyer reviews the individual evaluation for legal sufficiency.
Programmatic Section 4(f) evaluations may be used in place of individual evaluations if specific conditions are met. Under a programmatic Section 4(f) evaluation, certain conditions are applied such that, if a project meets the conditions, it will satisfy the requirements of Section 4(f) that there is no feasible and prudent alternative and that the project includes all possible planning to minimize harm. These conditions generally relate to the type of project, the severity of impacts to 4(f) property, the evaluation of alternatives, the establishment of a procedure for minimizing harm to the 4(f) resource, adequate coordination with appropriate entities, and the National Environmental Policy Act (NEPA) class of action.
Programmatic Section 4(f) evaluations simplify the documentation, interagency coordination, and approval processes required to complete a Section 4(f) evaluation. An analysis of avoidance alternatives is still required; however, interagency coordination is only required with the official(s) with jurisdiction and not with DOI, USDA, or HUD for this Section 4(f) evaluation process.
Currently, five programmatic evaluations have been approved for use nationwide for highway projects (Note: existing Section 4(f) programmatic evaluations are specific to FHWA). Programmatic evaluations may be used for:
- Independent walkway and bikeways construction projects
- Historic bridges
- Minor involvements with historic sites
- Minor involvements with parks, recreation areas, and wildlife and waterfowl refuges
- Net benefits to a Section 4(f) property
As noted above, in 2005, SAFETEA-LU made the first substantive revisions to Section 4(f) since the passage of the Department of Transportation Act of 1966. Specifically, SAFETEA-LU Section 6009 Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites (Section 6009) part (a) modified existing law at 23 U.S.C. 138 and 49 U.S.C. 303 to provide a simplified approval process of projects that have de minimis impacts on Section 4(f) property.
De minimis impact, in general terms, means that the use of the transportation project will not adversely affect the activities, features, and attributes of the Section 4(f) property. The de minimis impact criteria and associated determination requirements differ between (1) historic sites and (2) parks, recreation areas, and wildlife and waterfowl refuges.
A determination of de minimis impact on a historic property may be made when all three of the following criteria are satisfied:
- The process required by Section 106 of the National Historic Preservation Act (NHPA) results in the determination of “no adverse effect” or “no historic properties affected” with the concurrence of the SHPO and/or Tribal Historic Preservation Officer (THPO), and Advisory Council on Historic Preservation (ACHP) if participating in the Section 106 consultation.
- The SHPO and/or THPO, and ACHP if participating in the Section 106 consultation, is informed of DOT's intent to make a de minimis impact determination based on their written concurrence in the Section 106 determination.
- DOT has considered the views of any consulting parties participating in the Section 106 consultation.
A determination of de minimis impact on parks, recreation areas, and wildlife and waterfowl refuges, may be made when all three of the following criteria are satisfied:
- The transportation use of the Section 4(f) resource, together with any impact avoidance, minimization, and mitigation or enhancement measures incorporated into the project, does not adversely affect the activities, features, and attributes that qualify the resource for protection under Section 4(f).
- The official(s) with jurisdiction over the Section 4(f) property are informed of DOT's intent to make the de minimis impact determination based on their written concurrence that the project will not adversely affect the activities, features, and attributes that qualify the property for protection under Section 4(f).
- The public has been afforded an opportunity to review and comment on the effects of the project on the protected activities, features, and attributes of the Section 4(f) resource.
Unlike programmatic and individual Section 4(f) evaluations, when a de minimis impact determination is made an analysis of avoidance alternatives is not required. Appendix A provides flowcharts comparing the Section 4(f) evaluation process and the de minimis impact determination process for historic properties, parks, recreation areas, and wildlife and waterfowl refuges.
Section 6009(b) of SAFETEA-LU required DOT to promulgate regulations to clarify the factors to be considered and the standards to be applied in determining the prudence and feasibility of alternatives that avoid uses of Section 4(f) properties. The FHWA and FTA published a final rule1 on March 12, 2008, and the new regulation became effective on April 11, 2008.
Section 6009(c) of SAFETEA-LU required DOT to conduct a study and issue a report (herein referred to as the Phase I report) no sooner than August 10, 2008, on the implementation of the new Section 4(f) provisions and requirements. Specifically, SAFETEA-LU stipulated that the following should be evaluated:
- The new processes developed under Section 6009 and the efficiencies that may result.
- The post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects conducted under Section 6009.
- The number of projects with impacts that are considered de minimis, including information on the location, size, and cost of the projects.
Section 6009(c) also requires DOT to submit an update to the report (Phase II) to Congress.
Report Purpose
The primary purpose of this report is to provide Congress, DOI, and the ACHP an evaluation of:
- The processes developed under Section 6009, the new de minimis impact provision and the efficiencies that may result.
- The post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects that have relied upon the provisions of Section 6009.
- The quantity of projects with impacts that are considered de minimis, including information on the location, size, and cost of the projects.
The Phase I report also reviews the process DOT used to clarify the factors to consider and standards to apply for determining the “prudence and feasibility” of alternatives to avoid the use of a Section 4(f) property. This report is not intended to serve as a legal review of Section 6009 compliance. This Phase I report fulfills, in part, the requirement for the Secretary to report not earlier than 3 years from the date of enactment of the Act (August 10, 2005, through August 10, 2008) on the results of an evaluation study. The balance of this obligation will be fulfilled with the completion of Phase II of this study, due March 1, 2010. To benefit from the completion of the Phase I report and allow at least a year of implementation time for evaluation between the first and second phase of the study, the Phase II report will be fulfilled later than March 1, 2010.
During the Phase I study effort, DOT determined that sufficient information would not be available by August 2008 to adequately evaluate the implications of the new prudent and feasible standards. Phase II will evaluate the implementation efficiencies and effectiveness of the final rule on the prudent and feasible standards issued on March 12, 2008. The Phase II study and report will also update information on the implementation of de minimis impact determinations.
Report Contents
This Phase I report consists of five primary sections.
“Phase I Evaluation Methodology” describes how DOT selected a representative sample of projects from across the country to conduct surveys, interviews and analysis. The section explains the rationale for using the approach and identifies the constraints of the approach.
“De Minimis Impact Determinations Inventory” provides information on projects with impacts that are considered de minimis, including information on projects’ location, type, and cost.
“Study Findings” presents the initial results from the implementation of the de minimis impact provision. This section covers three areas: (1) Efficiencies resulting from the de minimis impact provisions, including findings on the time and cost impacts of utilizing the de minimis impact provision; (2) Post-construction effectiveness of impact mitigation and avoidance commitments associated with the de minimis impact determinations, which includes findings on the outcomes of the impacts on Section 4(f) resources and transportation project outcomes; and (3) Institutional factors associated with implementation of the de minimis impact provision.
“Feasible and Prudent Avoidance Alternatives Standards” documents the rulemaking process FHWA and FTA undertook to issue the new Section 4(f) regulation.
“Conclusions” summarizes the findings from the Phase I study.
The appendices consist of the: A) Section 4(f) process flowcharts; B) SAFETEA-LU Section 6009 study implementation plan (including SAFETEA-LU Section 6009 text); C) Transportation Research Board's (TRB) letter report comments on the study implementation plan (dated June 9, 2008); D) response to TRB's letter report (dated April 7, 2009) on the draft Phase I study; E) method for selecting projects to evaluate in the study; and F) the pre-interview questionnaire and guides used to focus interviews conducted.
Phase I Evaluation Methodology
SAFETEA-LU Section 6009 Implementation Study Plan
On March 31, 2008, DOT delivered a draft implementation study plan describing the proposed methodology for conducting the Section 6009 evaluation to TRB, as directed by Congress [SAFETEA-LU Section 6009(c)(1)(B)]. The draft study plan for the evaluation of the de minimis impact provision described a largely qualitative approach for selecting and interviewing a sampling of transportation projects for further examination (Appendix B). The draft study plan also included proposed questions designed to elicit information on the perception of any efficiencies resulting from the de minimis impact provision and to learn about the effectiveness of post-construction mitigation and avoidance commitments implemented as a part of the de minimis impact provision. The questions, which would be asked in a series of stakeholder telephone interviews, would form the empirical basis of the required evaluation. In addition, the draft study plan described a review of the process the DOT used to clarify the feasible and prudent standards. The review included:
- Documenting the rulemaking process used to develop the Notice of Proposed Rulemaking (NPRM).
- Analyzing the rationale and methods used for making the changes to the Section 4(f) regulation outlined in the NPRM.
- Documenting changes made in the final rule.
On June 24, 2008, TRB submitted a letter report to DOT of their independent review of the proposed study plan. The TRB suggested several ways to strengthen the study plan, offering conceptual suggestions for how to structure an approach to data collection and analysis (Appendix C). DOT responses to these recommendations are below and attached (Appendix D).
One suggestion for a quantitative study approach was an ex post facto design with nonequivalent control, which involves the comparison of data regarding the duration, costs, and outcomes associated with two comparable sets of Section 4(f) evaluations — one set being de minimis impact determinations and the other pre-amendment projects where the characteristics of the project suggest that a de minimis impact determination would have been applied. Upon review of existing data from sources including FHWA and DOI, DOT determined that sufficient data were not available to compare de minimis impact determinations with pre-SAFETEA-LU projects. As discussed in more detail below, States have not historically collected data regarding project details and the time and costs associated with the Section 4(f) process.
The DOI maintains a Section 4(f) database for all individual Section 4(f) evaluations that the DOI reviews. Information captured includes the date DOI received the Section 4(f) evaluation, the NEPA class of action, the date the DOI reviewed the evaluation, and a summary of DOI's comments. The DOI data do not include information on the Section 4(f) related time, cost or outcomes, nor does DOI collect information regarding programmatic Section 4(f) evaluations. Thus, DOT determined that the DOI data did not provide a means to compare de minimis impact determinations with pre-amendment projects.
Because of the lack of pre-amendment data, the study team relied upon a scenario-based approach to analyze the effects of the de minimis impact provision. The DOT identified a set of projects where de minimis impact determinations were made and, through interviews with project stakeholders, asked questions regarding how the Section 4(f) evaluation would have been carried out in the absence of the de minimis impact provision (Appendix E and F). At the time of the Phase I analysis, no other DOT mode, namely the Federal Railroad Administration or the Federal Aviation Administration, had made a de minimis impact determination. Therefore, Phase I focused exclusively on FHWA and FTA.
Selection of Projects with De Minimis Impact Determinations
Since 2005, FHWA and FTA have collected information from their division and regional offices on projects that have had de minimis impact determinations.2 The information, which is requested quarterly, includes information on project cost and size, class of action, type of Section 4(f) resources impacted, nature of the de minimis impact determination and any associated mitigation, date of the Section 4(f) de minimis impact determination and the construction start and end dates. At the time the study sample was selected, the March 21, 2008, version of the inventory represented the most-up-to-date information on FHWA and FTA de minimis impact determinations. Data on de minimis impact determinations that were collected after this date were not used to determine the study sample.
As of March 21, 2008, 636 de minimis impact determinations were made for 245 projects in 41 of 52 FHWA Federal-aid Division Offices, 2 of 3 Federal Lands Highway Division Offices3 and 3 of the 10 FTA regions. Records in the de minimis impact inventory indicated that of the 245 projects, 23 had completed the construction phase. With input from TRB and its letter report, DOT designed its selection criteria to ensure that a diverse group of Section 4(f) de minimis impact projects was examined, and that a stratified and representative set of stakeholders was identified for the evaluation.4 To date, the majority of de minimis impact determinations have involved highway projects rather than transit projects, projects classified as Catagorical Exclusions (CEs) rather than ones classified as Environmental Assessments (EAs) or Environmental Impact Statements (EISs), and historic properties rather than parks, recreational areas, or wildlife and waterfowl refuges. Selecting a criterion sample ensured that the study evaluated the impacts that the de minimis impact provision has had or may have on a variety of transportation projects, classes of action, and resource types.
The following characteristics of the project population were used as selection criteria:
- Number of States (including the District of Columbia and Puerto Rico) within the following de minimis impact determination categories: (1) States that have had 0 projects with a de minimis impact determination; (2) States that have had 1-10 projects with de minimis impact determinations; (3) States that have had 11-15 projects with de minimis impact determinations; and (4) States that have had more than 15 projects with de minimis impact determinations.5
- Mode of project: either highway or transit, with de minimis impact determination.
- Project type: bridge, intersection/interchange, safety, transportation enhancement, widening, or other.
- NEPA class of action: CE, EA, or EIS.
- Type of Section 4(f) resource involved: historic property, park, recreation area, and/or wildlife and waterfowl refuge.
- Federal Circuit Court District in which the project is located (court opinions on Section 4(f) issues have varied): 12 geographic based Court Districts, numbered 1 through 11 plus the District of Columbia
In order to address the requirement to evaluate the post-construction effectiveness of impact mitigation and avoidance commitments, the DOT determined that all 23 projects constructed as of March 21, 2008, should be included in the sample. This approach was intended to avoid reporting on projects‘ expected outcomes, and instead, to capture actual results. The distribution of the subset of 23 constructed projects (hereafter referred to as the “original sample”) across the selection criteria listed above were compared against the distribution of the total population of de minimis projects across each of the selection criteria. On its own, the original sample fell short of providing a sample that was representative of the population of projects. The underrepresented characteristics within the selection criteria were:
- Number of de minimis determinations: 1-10
- Number of de minimis determinations: > 15
- Type of Section 4(f) resource: Historic property
- Type of Section 4(f) resource: Park
- Transportation Project Type: widening
- Transportation Project Type: transit
- Class of Action: EA
- Class of Action: EIS
- Federal Circuit Court District: District of Columbia, 3, 7, 8, 9, 10 and 11
In order to address this issue and to ensure that the sample would not be overrepresented by any one type of project, three additional projects were added to the study sample. These three projects were chosen based on the number of criteria that these projects satisfied. The following projects, which satisfied the most criteria, were selected:
- Additional project number one: 1-10 de minimis determinations, EA, park, transit, Federal Circuit Court District 9
- Additional project number two: Greater than 15 de minimis determinations, EA, historic resource, widening, Federal Circuit Court District 11
- Additional project number three: 1-10 de minimis determinations, EIS, park, widening, Federal Circuit Court District 10
Table 1 illustrates the characteristics that where underrepresented in the preliminary sample (see gray shading) and how they were addressed.
Table 1. Comparison of the De Minimis Impact Inventory Population, Original Interview Sample, and Final Interview Sample
| |
Projects in Inventory as
of March 21, 2008 |
Construction Completed
Original Sample |
Final Sample |
| Number of de minimis findings |
State Count |
|
Sample Count |
|
Sample Count |
|
| 0 |
11 |
21% |
— |
— |
3 |
10% |
| 1 — 10 |
32 |
62% |
11 |
48% |
13 |
45% |
| 11 — 15 |
4 |
8% |
4 |
17% |
4 |
14% |
| > 15 |
5 |
10% |
8 |
35% |
9 |
31% |
| |
52 |
100% |
23 |
100% |
29** |
100% |
| Type of 4(f) Resource |
Project Count |
|
Sample Count |
|
Sample Count |
|
| Historic Property |
158 |
64.5% |
17 |
74% |
18 |
69% |
| Park |
50 |
20.4% |
4 |
17% |
6 |
22% |
| Recreation Area |
15 |
6.1% |
— |
— |
— |
— |
| Wildlife Refuge |
3 |
1.2% |
1 |
4% |
1 |
4% |
| Historic Property and Park |
6 |
2.4% |
— |
— |
— |
— |
| Historic Property and Rec. Area |
3 |
1.2% |
1 |
4% |
1 |
4% |
| Park and Rec. Area |
3 |
1.2% |
— |
— |
— |
— |
| Unknown |
7 |
2.9% |
— |
— |
— |
— |
| |
245 |
100.00% |
23 |
100% |
26 |
100% |
| Transportation Project Type |
Project Count |
|
Sample Count |
|
Sample Count |
|
| Highway: Other |
40 |
16% |
7 |
30% |
7 |
27% |
| Highway: Safety |
16 |
7% |
2 |
9% |
2 |
8% |
| Highway: Interchange |
35 |
14% |
4 |
17% |
4 |
15% |
| Highway: Transportation Enhancement |
14 |
6% |
2 |
9% |
2 |
8% |
| Highway: Widening |
55 |
22% |
3 |
13% |
5 |
19% |
| Highway: New Alignment |
17 |
7% |
3 |
13% |
3 |
12% |
| Highway: Bridge |
46 |
19% |
2 |
9% |
2 |
8% |
| Highway: Unknown |
14 |
6% |
— |
— |
— |
— |
| Transit |
8 |
3% |
— |
— |
1 |
4% |
| |
245 |
100.00% |
23 |
100% |
26 |
100% |
| Class of Action |
Project Count |
|
Sample Count |
|
Sample Count |
|
| Categorical Exclusion |
186 |
81% |
21 |
91% |
21 |
81% |
| Environmental Assessment |
39 |
17% |
2 |
9% |
4 |
15% |
| Environmental Impact Statement |
4 |
2% |
— |
— |
1 |
4% |
| Re-evaluation |
4 |
2% |
— |
— |
— |
— |
| Unknown |
12 |
5% |
— |
— |
— |
— |
| |
229 |
100.00% |
23 |
100% |
26 |
100% |
| Federal Circuit Court District |
Project Count |
|
Sample Count |
|
Sample Count |
|
| District 1 |
21 |
9% |
5 |
22% |
5 |
17% |
| District 2 |
17 |
7% |
1 |
4% |
1 |
3% |
| District 3 |
14 |
6% |
— |
— |
1 |
3% |
| District 4 |
30 |
12% |
2 |
9% |
2 |
7% |
| District 5 |
23 |
9% |
3 |
13% |
3 |
10% |
| District 6 |
19 |
8% |
2 |
9% |
2 |
7% |
| District 7 |
5 |
2% |
— |
— |
1 |
3% |
| District 8 |
11 |
4% |
2 |
9% |
3 |
10% |
| District 9 |
41 |
17% |
4 |
17% |
5 |
17% |
| District 10 |
43 |
18% |
4 |
17% |
5 |
17% |
| District 11 |
21 |
9% |
— |
— |
1 |
3% |
| |
245 |
100.00% |
23 |
100% |
29** |
100% |
*Re-evaluations and projects with an unknown NEPA class of action were not included in the tally.
**The sample count 29 includes 3 States with no de minimis impact determinations and, thus, there is no data for those states in the final sample's transportation project type, class of action, or type of 4(f) resource rows. Note: No projects involving recreation areas only, historic and park properties, or park properties and recreation areas were included in the final sample because no projects involving these resource categories had completed construction. Also, “Unknown” values represent project information for which data was not provided in the inventory.
Based on this strategy, a total of 25 projects from 20 States were selected for inclusion in the final sample for evaluation.6 Although they were chosen based on particular projects’ characteristics, the States that were selected accounted for 222 of the 366 projects (60.6 percent) for which de minimis impact determinations were made and, thus, accounted for a majority of the total experience implementing the de minimis impact provision. During the interview process, DOT found 2 instances where there were discrepancies between data reported in the inventory and the actual number of de minimis impact determinations. The inventory had recorded that for 2 of the initial 20 States in the sample no de minimis impact determinations had been made. However, it was discovered that these States had, in fact, been developing projects in which de minimis impact determinations had been made prior to March 21, 2008. Subsequently, these States were not included in the evaluation because they no longer met the criteria for which they were selected. To fill this gap, an additional State with no de minimis impact determination was identified, and the appropriate representatives were interviewed.
Table 2 below provides information on projects included in the study sample.
Table 2. Characteristics of Projects Studied**
| Project |
State |
NEPA Class
of Action |
Resource Type |
Project Type* |
Cost
(in millions $) |
De MinimisUse Size
(acres)^ |
| 1 |
AK |
EA |
Park |
O |
19.0 |
0.250 |
| 2 |
CA |
CE |
Park |
O |
24.0 |
- |
| 3 |
CO |
CE |
Historic |
NA |
0.8 |
0.727 |
| 4 |
CO |
CE |
Historic |
O |
2.9 |
- |
| 5 |
CO |
CE |
Historic |
B |
1.9 |
- |
| 6 |
GA |
EA |
Historic |
W |
72.0 |
1.440 |
| 7 |
IA |
EA |
Park |
W |
10.0 |
3.000 |
| 8 |
ID |
CE |
Historic |
NA |
0.2 |
0.003 |
| 9 |
MD |
CE |
Historic |
S |
3.2 |
0.527 |
| 10 |
ME |
CE |
Historic |
I |
1.1 |
0.038 |
| 11 |
ME |
CE |
Historic |
I |
2.3 |
0.141 |
| 12 |
ME |
CE |
Historic |
O |
0.1 |
0.004 |
| 13 |
MN |
EA |
Historic |
NA |
6.2 |
8.500 |
| |
MT |
CE |
Wildlife Refuge |
O |
1.0 |
2.000 |
| 14 |
NH |
CE |
Historic |
S |
3.2 |
0.019 |
| 15 |
NH |
CE |
Hist. and Rec. |
W |
1.2 |
0.133 |
| 16 |
NY |
CE |
Park |
I |
2.3 |
0.002 |
| 17 |
OH |
CE |
Historic |
TE |
0.6 |
- |
| 18 |
OK |
EIS |
Park |
W |
23.0 |
0.900 |
| |
RI |
N/A |
N/A |
N/A |
N/A |
N/A |
| 19 |
TN |
CE |
Historic |
I |
0.5 |
0.124 |
| 20 |
TX |
CE |
Historic |
O |
0.5 |
2.275 |
| 21 |
TX |
CE |
Historic |
B |
0.2 |
0.030 |
| 22 |
TX |
CE |
Historic |
TE |
1.9 |
- |
| 23 |
VA |
CE |
Historic |
O |
3.6 |
10.780 |
| 24 |
WA |
CE |
Historic |
W |
2.7 |
0.006 |
| 25 |
WY |
CE |
Park |
O |
0.1 |
0.125 |
*B—Bridge; I—Intersection/Interchange; NA—New Alignment; O—Other; S—Safety TE—Transportation Enhancement; W—Widening
**Data from the project selected in Montana are not included in the study due to incomplete information resulting from a medical issue with the appropriate interviewee. Data for Rhode Island is listed in this table as N/A because it was interviewed as a State with no de minimis impact determinations.
^ Sizes of de minimis use with “—” values represent acreages that were unreported.
Interview Strategy
For each of the projects selected, DOT attempted to conduct interviews with at least 3 stakeholder groups that have a regulatory role in the Section 4(f) process:
- One with the State's FHWA Division Office or relevant FTA Regional Office staff
- One with the State's DOT staff or relevant transit agency staff
- One with the official with jurisdiction over the Section 4(f) property, i.e. the SHPO or THPO or the park, recreation area, and/or wildlife and waterfowl refuge official
The FHWA and FTA headquarters staff identified appropriate points of contact to interview at the FHWA Division and FTA Regional offices. Those interviewees, in turn, helped identify State DOT, transit agency, and officials with Section 4(f) jurisdiction contacts with whom additional interviews were scheduled. The DOT study team provided an interview guide (Appendix F) to all interviewees in advance of the discussions. The provision of the interview guide ensured that the respondents would understand the context for the interviews, and would have sufficient time to identify relevant staff and gather appropriate information. The interview guide also provided a measure of standardization across interviews, enabling the collection of comparable information.
In its review of the study plan and methodology, TRB recommended that an effort be made to collect quantitative data and combine it with consistent qualitative evidence to provide a weight of evidence sufficient for drawing sound conclusions. To do so, DOT provided transportation agency interviewees with a pre-interview questionnaire (Appendix F) prior to the interviews, in addition to the interview guide. Respondents were asked to return the completed questionnaire in advance of the interviews. The questionnaire was designed to complement the open-ended nature of the interview questions. It included close-ended, structured questions to produce quantifiable information that could be measured and compared across transportation agencies. (Results are reported in the sections that follow.)
The pre-interview questionnaire was sent to transportation agency interviewees in order to identify whether the agency collected Section 4(f) data, and if so, what these data were.7 The pre-interview surveys were not provided to the officials with jurisdiction because the study team assumed that, since Section 4(f) is a DOT regulation, the resource officials likely would not have been tracking data pertaining to Section 4(f) evaluations.
In total, 51 interviews with stakeholders from 20 States were conducted between September 23, 2008, and December 5, 2008. Completed interviews involved:
Transportation Agencies
- 18 FHWA Division Offices
- 1 FTA Regional Office
- 18 State DOTs
- 1 transit agency
Officials with Jurisdiction
- 10 SHPOs
- 5 officials with jurisdiction over park, recreation areas, or wildlife and waterfowl refuges
Four officials with jurisdiction (one SHPO and three officials with jurisdiction over park, recreation areas, or wildlife and waterfowl refuges) did not respond to repeated requests for an interview. In total, 82 individuals—corresponding to a response rate of 91 percent—were interviewed (between one and five people in each agency participated in the interviews). Ninety percent of the interviewees reported having experience with Section 4(f) before and after the passage of SAFETEA-LU.
Each interview was conducted via conference call and lasted between 45 and 90 minutes. The structured interviews followed the guide provided to interviewees, but also allowed for additional discussions. The discussions were conversational in nature so interviewees could provide additional insights into the implementation of the de minimis impact provision. Interviewees were also informed that no comments would be directly attributed to them in the study findings.
The study team sought additional input from key national organizations with an interest in Section 4(f) policy. Their input was collected through individual telephone interviews with staff from the ACHP and the National Conference of State Historic Preservation Officers. These interviews were not related to the specific projects included in the study sample, but instead were designed to collect feedback on the national policy implications of the de minimis impact provision. Two other national organizations, the National Recreation and Park Association and National Trust for Historic Preservation, did not respond to requests for interviews.
To supplement the information gathered via telephone, site visits were initially planned. The purpose of site visits was to further evaluate the post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of the de minimis impact provision. However, the discussions with stakeholders led to the discovery that many of the projects processed with de minimis impacts had not actually completed the construction phase yet. Additionally, several interviewees were queried as to whether a site visit to their transportation project would offer supplementary information that could not be collected via telephone interview. The interviewees who were asked this question indicated that since their de minimis impact projects were such minor projects, usually only involving very small right-of-way acquisitions and no impact mitigation, site visits would not provide any more value than the information that was provided during the interviews. As a result, DOT determined that site visits would not add further value to the Phase I evaluation.
Study Data Quality and Research Limitations
As part of an assessment of the quality of the data utilized for this evaluation analysis, the following limitations in conducting the study and responses to those limitations are disclosed:
- The FHWA and FTA have requested and relied on their field offices to self report complete and accurate information on de minimis impact determinations. In some cases, the data are incomplete and/or reported to varying degrees of accuracy and detail.
- Inaccuracies in the information reported in the de minimis impact determinations inventory were discovered. Once errors were recognized, the data analysis team made adjustments to what information was included in the sample subject to analysis. It became apparent that two of the States initially identified as not having made any de minimis impact determinations prior to March 21, 2008, had actually done so. Although these States were initially included in the study sample, they were subsequently removed because they no longer met the criteria for which they were selected. One additional State with no de minimis impact determinations was identified and interviewed. Therefore, the final interview sample included fewer States with no de minimis impact determinations than originally intended.
- The 23 projects included in the original sample were based on the assumption that the projects had completed construction. The intent of including all projects that had completed construction in the analysis was to minimize opinions and information about project outcomes, especially information on the post-construction effectiveness of impact mitigation and avoidance commitments. Site visits were then planned to supplement project details gathered during interviews. However, stakeholder interviews revealed that a number of projects listed in the inventory as having completed construction had not, in fact, completed the construction phase. Additionally, of the projects that had completed construction, the interviewees noted that site visits were not warranted because the projects and their potential impacts were so minor. As a result, the DOT determined that site visits during Phase I would not provide additional information beyond that which was derived from the interviews.
- Most State DOTs and transit agencies do not collect or track time and cost data specific to the Section 4(f) process. As a result, statistical comparisons of resource expenditures between projects pre- and post-SAFETEA-LU were not feasible. The study findings regarding time and cost efficiencies associated with the de minimis impact provision are based on estimates and qualitative information from interviews.
- Given the qualitative nature of some of the interview questions, not all information collected during the interviews was easily verifiable. Therefore, characterizations and descriptions of outcomes of the de minimis impact process that were obtained through interviews were viewed to be individual perceptions that may not necessarily indicate views of the entire population.
- For each of the projects selected, attempts were made to conduct at least three interviews with the stakeholders that have a regulatory role in the Section 4(f) process (FHWA/FTA staff, State DOT or transit agency transportation officials, and the official with jurisdiction over the Section 4(f) resource). Four officials with jurisdiction over Section 4(f) property (one SHPO and three park and recreation officials) did not respond to interview requests. At least three attempts (by telephone and e-mail) were made to contact these officials before they were considered “nonresponsive.”
- Although equally targeted, there is an imbalance in the ratio of officials with jurisdiction to transportation officials interviewed. This imbalance is the result of more transportation stakeholders for each project, because one State DOT or transit agency and one FHWA Division Office or FTA Regional Office are always involved, whereas there is usually only one Section 4(f) property official with jurisdiction.
De Minimis Impact Determinations Inventory
The SAFETEA-LU Section 6009(c) requires the Secretary of Transportation to prepare a report that evaluated the new provisions in that section of law. The law requires that information on the number of projects with impacts that are considered de minimis, including information on the location, size, and cost of the projects be collected. Since 2005, FHWA and FTA has collected these data from their field offices. The data are compiled and saved in a spreadsheet (hereafter referred to as the “inventory”). The inventory includes information on project cost and size, class of action, type of Section 4(f) resource(s) impacted, nature of the de minimis impact determination and any associated mitigation, date of the Section 4(f) de minimis impact determination, and construction start and end dates.
An analysis of data in the inventory shows that since SAFETEA-LU was adopted, the number of projects with a de minimis impact determination per year for both highway and transit projects have followed an upward trend. In 2005, nationwide there was an average of three projects with de minimis impact determinations per month. During 2008, the last year for which data for all months are currently available, the average per month was up to 19.8. As of April 2009 — the date for which Figures 1-4 correspond — de minimis impact determinations had been made for 366 projects. Of these projects, 344 were highway projects (occurring in 44 States) and 22 were transit projects (occurring in 9 States). Five States along with the District of Columbia and Puerto Rico have had no de minimis impact determinations. Figure 1 illustrates the distribution of projects with de minimis impact determinations by State.
Figure 1. Total Reported Projects with De Minimis Impact Determinations by State, FHWA and FTA (as of April 2009)
*Delaware, Puerto Rico, and the District of Columbia had no de minimis impact determinations.
Two-hundred ninety of the 366 projects (79 percent) had a single de minimis impact determination.8 Forty projects (11 percent) had two de minimis impact determinations, while 36 projects (10 percent) had more than 2 determinations (see Figure 2).
Figure 2. Number of De Minimis Impact Determinations per Transportation Project Type (as of April 2009)
Approximately 60 percent (219) of the projects with de minimis impact determinations have been for historic property resources, 23 percent (85) for parks, 9 percent (33) for recreation areas, and 3 percent (9) for wildlife and waterfowl refuges. Approximately 2 percent (9) of the projects with de minimis impact determinations have been made on projects related to both historic properties and a park, 1 percent (4) for historic properties and recreation areas, less than 1 percent (3) for park and recreation area, and less than ½ percent (1) for historic properties, park, and recreation area. Figure 3 illustrates these data.
Figure 3. Projects with De Minimis Impact Determinations by Resource Type (as of April 2009)
Two-hundred eighty one (77 percent) de minimis impact determinations have been made on projects with CEs. The EAs account for 16 percent (59) of projects with de minimis impact determinations, while the remainder of the determinations (7 percent; 26 projects) occurred on projects with EISs or re-evaluations or unknown environmental review documents (see Figure 4).
Figure 4. Share of De Minimis Impact Determinations by NEPA Class of Action (as of April 2009)
When separated by historic and non-historic properties, the class of action distribution for projects with de minimis impact determinations is proportionately similar. Table 3 illustrates these data and provides a breakdown of cost and land area by the type of Section 4(f) resource involved, as well as between highway and transit projects.
Table 3. Class of Action, Cost, and Size of Projects with De Minimis Use Impact Determinations by Property Type (as of April 2009)
| |
HIGHWAY PROJECTS |
TRANSIT PROJECTS |
| Non-Historic |
Historic |
Both Historic
and Non-Historic |
Non-Historic |
Historic |
| Class of Action |
CE |
89 |
161 |
16 |
4 |
11 |
| EA |
22 |
31 |
2 |
1 |
1 |
| EIS |
3 |
6 |
— |
1 |
— |
| Re-evaluation or Unknown |
6 |
6 |
2 |
1 |
3 |
| Cost |
Average |
$28,052,785 |
$380,761 |
$7,587,485 |
$276,019,173 |
$26,167,222 |
| Median |
$4,950,000 |
$1,779,964 |
$3,800,000 |
$19,295,866 |
$3,100,000 |
| Minimum |
$84,000 |
$55,000 |
$165,000 |
$400,000 |
$405,000 |
| Maximum |
$450,000,000 |
$200,000,000 |
$33,500,000 |
$700,000,000 |
$130,000,000 |
De Minimis
Use Size (acres) |
Average |
0.98 |
1.24 |
0.94 |
0.0413 |
0.3826 |
| Minimum |
0.0002 |
0.0001 |
0.02 |
0 |
0 |
| Maximum |
6.50 |
38.00 |
4.00 |
0.25 |
5.7 |
| |
Highway Project Cost |
Transit Project Cost |
| Average |
Maximum |
Minimum |
Average |
Maximum |
Minimum |
| Class of Action |
CE |
$6,110,180 |
$66,900,000 |
$55,000 |
$1,843,571 |
$3,700,000 |
$400,000 |
| EA |
$41,412,663 |
$200,000,000 |
$136,000 |
$61,100,000 |
$130,000,000 |
$19,300,000 |
| EIS |
$154,152,130 |
$660,000,000 |
$1,101,301 |
$473,000,000 |
$700,000,000 |
$59,000,000 |
| Re-evaluation or Unknown |
$142,398,063 |
$700,000,000 |
$13,500,000 |
— |
— |
— |
The total project cost for highway projects that had at least one de minimis impact determination ranged from $55,000 to $450,000,000. The median cost for highway projects involving non-historic property resources was $4,950,000; for highway projects involving historic property resources it was approximately $1,780,000; and for highway projects involving both historic and non-historic resources it was $3,800,000. The total project costs for transit projects that had at least one de minimis impact determination ranged from $400,000 to $700,000,000. The median cost for transit projects involving non-historic property resources was approximately $19,300,000 and for transit projects involving historic property resources it was $3,100,000.
Road widening and bridge rehabilitation/replacement projects account for most of the highway projects that have had de minimis impact determinations (each 75 or 22 percent). Projects classified as “Other” make up the next largest group of projects with de minimis impact determinations (60 or 17 percent). See Table 4.
Table 4. De Minimis Impact Determinations by Highway Project Type (as of April 2009)
| Project Type |
Number |
Percent |
Average Cost |
Average Project
Length |
| Widening |
75 |
21.7% |
$31,894,273 |
5.40 miles |
| Bridge |
75 |
21.7% |
$21,965,072 |
0.99 miles |
| Other |
60 |
17.4% |
$20,029,420 |
2.27 miles |
| Intersection/Interchange |
46 |
13.3% |
$30,519,352 |
1.15 miles |
| Resurfacing/Rehabilitation |
22 |
6.4% |
$9,993,524 |
3.53 miles |
| Transportation Enhancement |
26 |
7.5% |
$3,591,422 |
1.39 miles |
| New Alignment |
20 |
5.8% |
$24,330,898 |
2.14 miles |
| Safety Improvements |
20 |
5.8% |
$3,334,468 |
2.63 miles |
For the 22 transit projects, facility construction or rehabilitation and expansion projects account for the majority of the projects that have had de minimis impact determinations. These type of projects included transit station modifications, transit stop construction, and railroad siding extensions and bridge rehabilitation projects.
The size of the land area of the de minimis impact use for projects in the inventory has ranged from less than one hundredth of an acre to 38 acres. The average size of the de minimis impact use is 1.13 acres. The median is 0.3 acres.
Study Findings
The following section provides the initial results from the implementation of the de minimis impact provision in three areas: (1) Efficiencies resulting from the de minimis impact provisions, including findings on the time and cost impacts of utilizing the de minimis impact provision; (2) Post-construction effectiveness of impact mitigation and avoidance commitments associated with the de minimis impact determinations, which includes findings on the impact outcomes on Section 4(f) resources and transportation project outcomes; and (3) Institutional factors associated with implementation of the de minimis impact provision.
Efficiencies Resulting From the De Minimis Impact Provisions
How do stakeholders define “efficiency” in the context of the de minimis impact provision?
When asked how they would define the term “efficiency” in the context of the de minimis impact provision, most interviewees offered a definition in terms of the time, cost, and the level of effort required to prepare Section 4(f) documentation and obtain FHWA/FTA approval. This definition of efficiency was consistent across the three stakeholder groups interviewed (FHWA/FTA, State and transit transportation agencies, and the officials with jurisdiction over the Section 4(f) resources).
Additional definitions included:
- Having the appropriate analysis done correctly the first time.
- Knowing what information you need and being able to get it quickly, and document your decisions quickly.
- Being able to get a project out to construction in a timely way if everything has been considered and is sensitive to the resource.
For the purposes of this evaluation, “efficiency” is thus characterized in terms of the time and cost savings realized when making a de minimis impact determination versus conducting and documenting alternative Section 4(f) processing methods (i.e. programmatic Section 4(f) evaluations and individual Section 4(f) evaluations).
Time Implications
Do transportation agencies collect data regarding the time involved in completing the Section 4(f) process?
A pre-interview questionnaire was sent to the transportation agency interviewees (FHWA, FTA, transit agencies, and State DOT staff) in order to identify whether the agency collected Section 4(f) data. Of the 42 Federal and State and transit transportation officials surveyed, 34 (81 percent) reported that they did not collect information on the time associated with completing the Section 4(f) process prior to the passage of SAFETEA-LU. Similarly, 30 (71 percent) of transportation officials surveyed reported that since the passage of SAFETEA-LU they have not collected data regarding Section 4(f) processing times. During the interviews, States that had indicated in the survey that they did collect data on processing times clarified that they do so only for the overall NEPA process and not specifically for the Section 4(f) process. Several transportation officials reported that they have not encountered the need to disaggregate the Section 4(f) and NEPA timelines.
The only Section 4(f) related data that transportation agencies consistently collect are data explicitly requested by FHWA and FTA for the de minimis impact determinations inventory. Since 2005, FHWA and FTA have collected information from their respective division and regional offices on the number of projects with de minimis impact determinations. Since no transportation agencies have collected information on the time it takes to complete Section 4(f) process, no quantitative information is available to report. However, the interviews gathered information on transportation agency qualitative perceptions of time savings.
Has the de minimis impact provision reduced the amount of time associated with completing the Section 4(f) process?9
Because transportation officials have not collected data regarding the duration of the Section 4(f) process, it is not possible to quantify definitively any time savings associated with the de minimis impact provision. However, 33 (79 percent) of the transportation officials surveyed, i.e. Federal, State and transit agencies, reported that the de minimis impact provision has improved the timeliness for completing the Section 4(f) process (see Figure 5).
Figure 5. Effect of the De Minimis Impact Provision on the Timeliness of Completing the Section 4(f) Requirements
According to those surveyed, the reduction in the time involved with completing the Section 4(f) process has not necessarily equated to time savings within the overall environmental review process. That is because Section 4(f) is just one of many aspects contributing to the length of time necessary to complete the NEPA process.
One State DOT reported that the de minimis impact provision has increased the time associated with completing the Section 4(f) process. This situation is unusual because the State DOT and the FHWA Division Office have a unique Section 4(f) Programmatic Agreement (PA) that allows the State to administratively determine the applicability of the nationwide programmatic Section 4(f) evaluations to projects processed under a CE. When this State DOT approves a programmatic Section 4(f) evaluation, the agency sends the evaluation to its FHWA Division Office and proceeds with the project without additional paperwork if FHWA, which retains its oversight and monitoring role, does not object within 15 days from receipt of the evaluation. The Section 4(f) PA does not apply to de minimis projects, and therefore, that State DOT has to send its de minimis documentation to the FHWA Division Office and then wait to receive formal approval before proceeding. The approval process typically takes longer than 15 days, resulting in the de minimis impact process having a longer timeframe than programmatic Section 4(f) evaluations.
How have the various aspects of the de minimis impact provision affected the timeliness for completing the Section 4(f) process?
Transportation officials were asked to rate how the following factors of the de minimis impact provision have affected the time associated with completing the Section 4(f) process:
- Elimination of the requirement to coordinate with and obtain comments from DOI
- Elimination of the FHWA/FTA legal sufficiency review process
- Elimination of the requirement to design and evaluate alternatives
- Addition of the public comment and review requirements (for parks, recreation areas, and refuges)
- Relying on a Section 106 determination to reach a 4(f) determination (for historic properties)
Elimination of the requirement to coordinate with and obtain comments from the DOI
Eighteen (43 percent) of the transportation agencies surveyed reported that the elimination of the requirement to coordinate with and obtain comments from the DOI significantly reduced the time associated with completing the Section 4(f) process (see Figure 6). However, interviewees noted that a programmatic Section 4(f) evaluation10 does not require coordination and review by the DOI. Therefore, any savings attributed to this factor would only occur if, in the absence of the de minimis impact provision, the project would have been processed through an individual Section 4(f) evaluation. Of the 25 projects analyzed, 19 would have been processed using a programmatic Section 4(f) evaluation in the absence of the de minimis impact provision. The remaining projects include two that would have been processed using an individual evaluation, two projects that would have avoided the Section 4(f) property, one project that would not have been built, and one that would have qualified as a temporary occupancy under Section 4(f) regulations and thus exempt from Section 4(f) requirements.
Figure 6. Effect of the Elimination of the Requirement to Coordinate With and Obtain Comments from DOI on the Time Associated with Completing the Section 4(f) Process
Elimination of the FHWA/FTA legal sufficiency review process
Sixteen transportation agencies (38 percent), which include Federal, State and transit agencies, reported that the elimination of the FHWA/FTA legal sufficiency review process significantly reduced the process (see Figure 7). Similar to the DOI comment requirement, a programmatic Section 4(f) evaluation does not require FHWA/FTA legal sufficiency review. Therefore, any savings attributed to this factor would only occur if, in the absence of the de minimis impact provision, the project would have been processed through an individual Section 4(f) evaluation.
Figure 7. Effect of the Elimination of the FHWA/FTA Legal Sufficiency Review Process on the Time Associated with Completing the Section 4(f) Process
Elimination of the requirement to design and evaluate alternatives
A primary difference between processing Section 4(f) through a de minimis impact determination versus a programmatic evaluation or individual Section 4(f) evaluation is the elimination of the requirement to design (or develop) and evaluate alternatives to using the Section 4(f) resource. Of the Federal and State/local transportation agencies surveyed, 19 (45 percent) reported that this factor significantly reduced the time associated with completing the Section 4(f) process (see Figure 8). The actual time savings gained from being able to make a de minimis impact determination varies according to the level of difficulty involved in analyzing avoidance alternatives, as well as the workload of the design engineers. Interviewees estimated that the time savings from not having to develop or evaluate alternatives ranged from as little as a couple of hours to as much as 6 months (although the timeframes were based on estimates and not independently verifiable data). Transportation officials who selected “No impact on time” for the option “Elimination of the requirement to design and evaluate alternatives” clarified that even though they are not required to document the evaluation of alternatives, they still conduct an alternatives analysis for many projects in order to assess what the project's effects are prior to making the de minimis impact determination, or to consider other resources or issues.
Many of the transportation officials interviewed stated that the elimination of the requirement to design and evaluate alternatives has not changed the outcome of transportation projects in general, but has enabled their agencies to reach the outcome (i.e. the final project design) in a more streamlined manner. For instance, prior to the de minimis impact provision, when evaluating alternatives under either the programmatic evaluation or the individual evaluation processes, a transportation agency would typically determine that modifying a project to avoid a minor impact to a Section 4(f) resource was not prudent and feasible due to reasons such as increased environmental impacts to non-Section 4(f) properties. Most interviewees found that the removal of the alternative analysis process from projects that have minimal impacts on Section 4(f) resources has streamlined Section 4(f) compliance without compromising the original intent of Section 4(f).
Figure 8. Effect of the Elimination of the Requirement to Design and Evaluate Alternatives on the Time Associated with Completing the Section 4(f) Process
In addition to streamlining the Section 4(f) process, several transportation officials stated that the elimination of the requirement to design and evaluate alternatives has also helped to streamline the process for completing CEs. Unlike EAs and EISs, conducting alternatives analysis is not usually required for CE projects. Thus, Section 4(f) requirements drive the obligation to conduct alternatives analyses for CE projects. Before the existence of the de minimis impact provision, Section 4(f) typically contributed to a larger proportion of CE workload than it did for EA or EIS documents. Consequently, the elimination of the requirement to design and evaluate alternatives for de minimis impacts has, in some of the projects included in the study, also expedited the completion of CE documentation for highway projects.
Addition of the public comment and review requirements (for parks, recreation areas, and refuges)
For parks, recreation areas, and wildlife and waterfowl refuges, the de minimis impact provision requires that the public be afforded an opportunity to review and comment on the effects of the project on the protected activities, features, and attributes of the Section 4(f) resource. The public involvement requirements related to the specific NEPA document and process will, in most cases, be sufficient to satisfy the public notice and comment requirements for the de minimis impact determination. Projects that do not require public review and comment under NEPA are required to undergo a public review and comment period for a de minimis impact determination under Section 4(f).
Nineteen (45 percent) of the transportation agencies, which includes Federal, State and transit agencies, surveyed perceived that the new public review and comment requirement has not affected the time needed to complete the Section 4(f) process (see Figure 9). The majority of those interviewed said they fulfilled the Section 4(f) public involvement requirement by implementing the NEPA public involvement procedures associated with the project, such as public meeting procedures held as part of the overall NEPA process.
Nine (21 percent) of the transportation officials surveyed reported that they do not have a public involvement component for CE projects; therefore, they have had to add a separate public involvement piece to fulfill the de minimis requirements. Several of the transportation officials interviewed stated that they were uncertain of the level of public notice required to satisfy the de minimis requirements. Some States have chosen to fulfill the public comment and review requirement through public meetings, while others post flyers, place announcements in local newspapers, or distribute mailings.
Figure 9. Effect of the Addition of the Public Comment and Review Requirements (for Parks, Recreation Areas, and Refuges) on the Time Associated with Completing the Section 4(f) Process
In one State, both the State DOT and FHWA Division Office representatives noted that the public involvement requirement for non-historic resources has been a barrier to using the de minimis impact provision. This State found that, for some CE projects not requiring public involvement under NEPA, it actually takes less time to process Section 4(f) through a programmatic evaluation than through the de minimis process; completing the programmatic evaluation could be done in less time than with the 30 days typically associated with the public involvement component of the de minimis impact determination.
Relying on a Section 106 determination to reach a 4(f) determination (for historic properties)
For the projects surveyed, being able to utilize a “no adverse effect” or “no historic properties affected” finding made under the Section 106 process as the basis for making a de minimis impact determination has streamlined the Section 4(f) process for historic properties. Thirteen (32 percent) of the transportation officials surveyed stated that being able to rely on a Section 106 determination to reach a 4(f) determination significantly reduced the time associated with completing the Section 4(f) process, and 9 (25 percent) stated that it somewhat reduced the time associated with completing the Section 4(f) process (see Figure 10). Prior to the de minimis impact provision, transportation agencies were required to complete more detailed Section 4(f) evaluations even when the SHPO or THPO had already concurred that the use of a historic property caused no adverse effect to it.
Three transportation agencies and one SHPO mentioned that the requirement to notify the SHPO of the intent to make a de minimis impact determination and obtain written concurrence in the finding of “no adverse effect” or “no historic properties affected” creates an unnecessary and redundant step in coordinating with the SHPO. The agencies questioned why the SHPO's concurrence with the
Section 106 “no adverse effect” finding did not suffice. However, the majority of SHPOs who were interviewed support the de minimis impact determination being based on the Section 106 effects determination because they believe that it has strengthened the Section 106 process.
Figure 10. Effect of Relying on a Section 106 Determination to Reach a Section 4(f) Determination (for Historic Properties) on the Time Associated with Completing the Section 4(f) Process
Has the de minimis impact provision created additional work for the officials with jurisdiction over Section 4(f) properties?
Historic Properties
All of the SHPOs interviewed stated that the de minimis impact provision has not increased the length of time needed to fulfill their Section 106 responsibilities. The majority of SHPOs interviewed reported that the de minimis impact provision has not altered the Section 106 process coordination process between the SHPO and the State/transit transportation agency (acting for FHWA/FTA). For historic properties, the majority of State/transit transportation agencies are notifying the SHPOs of FHWA/FTA's intent to make a de minimis impact determination as part of the Section 106 coordination process. The majority of States have added a signature line or section to the Section 106 effects determination letter in order to fulfill the requirement to obtain written concurrence from the SHPO. In these cases, the de minimis provision would have added little or no burden to the workload of the officials with jurisdiction. However, some SHPOs reported a few instances where the notification of the intent to use the de minimis process was filed separately from the Section 106 process, either due to process timing issues or the late discovery of a Section 4(f) use, which creates extra work for the SHPOs in that they have to process an additional piece of paperwork.
Two SHPOs expressed concern that the de minimis impact provision could create additional work for them in instances where the transportation agency would try to use the de minimis impact provision inappropriately, for example in a project that results in more than a de minimis impact to a Section 4(f) resource. Such a situation would require additional coordination, and hence more time and effort, to resolve issues between the SHPO and the transportation agency. However, very few interviewees reported instances where the official with Section 4(f) jurisdiction did not agree with a transportation agency's proposal to make a de minimis impact determination.
Many States that have Section 106 PAs are interested in amending them to include language regarding the de minimis impact provision. (Some State DOTs and/or FHWA Division Offices, in partnership with SHPOs, have developed PAs to streamline compliance with Section 106. The Section 106 PAs stipulate conditions that, if met, obviate the requirement for individual project-by-project review, documentation, and approval). As a result, several of the State DOTs stated that they are coordinating with their SHPO to develop a Section 106 PA that stipulates that FHWA/FTA intends to use the de minimis impact provision for any project that has a finding of “no adverse effect” or “no historic properties affected” on the Section 4(f) resource. Such an agreement would further streamline the de minimis process.
Parks, recreational areas, and wildlife and waterfowl refuges
None of the interviewed officials with jurisdiction over parks, recreational areas or wildlife and waterfowl refuges have found the new de minimis impact provision to create additional work as compared to other Section 4(f) processing options. For two of the five parks, recreational area or refuge officials interviewed, the project with de minimis impacts was their first with Section 4(f) impacts. Of the three officials with jurisdiction who had previous Section 4(f) experience, two reported that the de minimis provision did not change their level of involvement in the Section 4(f) process. One official stated that the de minimis provision was a good tool to help the Federal Government interact with local communities. This park official found that using the de minimis provision streamlined the project development process for the specific project that clearly had no adverse impacts to the park.
Cost Implications
Do transportation agencies collect data regarding the costs involved with completing the Section 4(f) process?
A pre-interview questionnaire was sent to the transportation agency interviewees to identify whether the agency collected Section 4(f) process cost data. The majority of transportation agencies that completed the survey collected no cost data associated with fulfilling Section 4(f) requirements. Of those surveyed, 35 (83 percent) did not collect information on the costs associated with completing the Section 4(f) process prior to the passage of SAFETEA-LU. Similarly, 34 (81 percent) of Federal, State and transit transportation agencies surveyed reported that since the passage of SAFETEA-LU they have not collected data regarding costs associated with Section 4(f) processing. The States that reportedly collect data did so for the overall environmental process; they do not track data that are only specific to the Section 4(f) process.
Has the de minimis impact provision reduced the cost associated with completing the Section 4(f) process?
Since the majority of transportation agencies interviewed (81 percent) do not collect cost data associated with Section 4(f) compliance, it is not possible to quantify the cost implications of the de minimis impact provision. However, 24 (57 percent) of Federal, State and transit transportation officials surveyed perceived that the de minimis impact provision has reduced the costs of fulfilling the Section 4(f) requirements (see Figure 11). The transportation agencies interviewed attributed cost savings to a reduction in labor hours required to develop Section 4(f) documentation. Many transportation agencies employ consultants to help them develop Section 4(f) documents. When transportation agencies are able to make a de minimis impact determination, they often complete the de minimis documentation themselves and save on the costs of hiring a consultant to conduct an alternatives analysis or documenting the Section 4(f) evaluation.
Several of the transportation officials interviewed stated that, in addition to reducing the labor costs associated with processing Section 4(f) documents, the de minimis impact provision may also lead to a reduction in a project's overall construction costs. By enabling agencies to complete the Section 4(f) process more quickly, agencies are able to let the transportation projects out to construction earlier. Because costs associated with construction (e.g., materials) typically increase from year to year, in those States that have limited construction seasons, having the ability to begin project construction one season earlier can generate substantial cost savings.
Figure 11. Effect of the De Minimis Impact Provision on the Cost of Completing the Section 4(f) Requirements
Post-Construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the De Minimis Impact Provision
How do stakeholders define “effectiveness” in the context of the de minimis impact provision?
Interviewees were requested to define “effectiveness” in the context of the de minimis impact provision. The majority of interviewees across the three stakeholder groups interviewed defined “effectiveness” in terms of maintaining the current level of Section 4(f) resource protection while providing the public with quality transportation projects.
Additional definitions of effectiveness included:
- The ability for the parties to consult and coordinate with one another to come up with project measures that avoid and minimize the impact to the properties.
- The smallest possible impact you can have while still providing the citizenry with a safe and efficient transportation system.
- Balancing the impacts to all resources, not just the Section 4(f) resources.
- When a project is a win-win scenario for both the transportation sponsor and the official with Section 4(f) jurisdiction.
For the purposes of this evaluation, “effectiveness” is characterized as maintaining the current level of Section 4(f) resource protection in the presence of the transportation project. This definition represents a synthesis of the definitions articulated to DOT during stakeholder interviews.
Resource Protection Outcomes
Is the de minimis impact provision effective in maintaining protection of the Section 4(f) resources?
Transportation Officials' Perspectives
Two categories of transportation officials were surveyed: Federal transportation officials (FHWA Division Office and FTA Regional Office staff) and State/transit transportation offices (State DOT and transit agency staff). Of those Federal, State and transit transportation officials surveyed, 32 (76 percent) shared the perception that the de minimis impact provision has not reduced the protection of the Section 4(f) resource as compared to alternative Section 4(f) processing methods (see Figure 12). These individuals noted that the de minimis process often generates similar outcomes as would be reached with alternative processing options. For instance, through the evaluation of alternatives under either the programmatic evaluation or the individual evaluation processes, a transportation agency would typically determine that modifying a project to avoid a minor impact to a Section 4(f) resource would not be prudent and feasible due to reasons such as increased property impacts or increased environmental impacts to non-Section 4(f) properties. As a result, the transportation project would process a Section 4(f) evaluation and result in a use of the Section 4(f) resource. Now, when the impacts are minor the de minimis impact provision has enabled the interviewed agencies to reach the same outcome in a streamlined manner.
Figure 12. Effect of the De Minimis Impact Provision on Protection of Section 4(f) Resources
Four (10 percent) of the Federal, State and transit transportation officials surveyed considered the de minimis impact provision to improve the level of Section 4(f) resource protection. These individuals noted that because transportation agencies are increasingly driven by project schedule performance, the streamlining benefits of the de minimis impact provision have enabled environmental staff to encourage their engineering and design counterparts to include innovative design measures to a project. When design engineers know that designing a project to minimize impacts to Section 4(f) resources can lead to a faster project delivery, they are more receptive to “thinking outside the box” in terms of design. In addition, many of the transportation staff interviewed stated that the de minimis impact provision has helped bring about a level of coordination with park and recreation officials that may not have previously existed in the Section 4(f) process. In this sense, the de minimis impact provision has provided an impetus for transportation officials to communicate more frequently with park and recreation officials, and to do so earlier in the project development process. Through this coordination, transportation agencies are able to learn what activities, features, and/or attributes of the resource are most important and, thus, have an incentive to design projects that avoid project impacts to those elements in order to make a de minimis impact determination.
One FHWA Division Office reported that the de minimis impact provision could negatively affect the protection of Section 4(f) resources. The office expressed concern that under the de minimis impact provision, avoidance of the Section 4(f) resource might not be an option that is as closely considered as it would be under an individual Section 4(f) evaluation.
Another FHWA Division Office expressed concern that the officials with jurisdiction over park, recreation areas, and wildlife and waterfowl refuges, are using de minimis as a tool to leverage additional mitigation above and beyond what would normally occur as part of a transportation project. In this State, the Federal Circuit District Court has historically used a very strict interpretation of the Section 4(f) feasible and prudent standards, leading the State's transportation agencies to avoid the Section 4(f) process completely, if possible. With the introduction of the de minimis impact provision, the State has been better able to balance the use of the Section 4(f) resource against other factors. Some of the officials with Section 4(f) jurisdiction are aware of the fact that the State DOT views de minimis as a valuable tool and therefore, in the opinion of the FHWA Division Office, have used it as leverage to increase the amount of mitigation for projects, which could result in “over-mitigation” for some projects.
Officials with Jurisdiction's Perspectives
The SHPOs interviewed stated that the de minimis impact provision has not changed the process for assessing impacts on historic properties. For historic properties, the transportation agencies continue to coordinate with the SHPOs through the Section 106 process to determine the effect of a project on historic properties. Overall, the SHPOs interviewed perceived that the de minimis impact provision has maintained the protection of Section 4(f) resources. Four of the SHPOs interviewed responded that the de minimis impact provision has increased the level of consultation and coordination between the transportation agency and their agency, which resulted in the development of projects that further minimized impacts to Section 4(f) properties. For these officials, the de minimis impact provision is another way to encourage transportation agencies to design projects that have fewer adverse impacts to resources.
The officials with jurisdiction over parks, recreational areas and wildlife and waterfowl refuges interviewed have not noted any reduction in the protection of Section 4(f) resources for those with de minimis evaluations compared to non-de minimis Section 4(f) evaluation processing. Three of the five park, recreational, or refuge officials interviewed were not aware of the difference between a de minimis Section 4(f) process and a non-de minimis Section 4(f) process.
Each of the five officials with jurisdiction over parks, recreational areas, and wildlife and waterfowl refuges that were interviewed stated that the State/transit transportation agency coordinated with the park officials, either directly or through the local public works department, early in the project's planning and design phase to develop a project that minimized impact to the Section 4(f) resource. Four of the five officials interviewed stated that minimization or mitigation activities, ranging from landscaping to project phasing, were included in the project. However, none of the non-historic officials with jurisdiction interviewed attributed the addition of such mitigation and/or minimization measures to the de minimis impact provision; rather, they stated that it is standard practice for such measures to be included as a result of the consultation process for transportation projects, whether Section 4(f) is applicable or not.
It should be noted that the officials with jurisdiction associated with 4 of the 25 projects were not interviewed. One SHPO and three park and recreation officials did not respond to multiple interview requests. However, these officials had provided written concurrence with the proposed de minimis impact determination, indicating their agreement that the project did not negatively impact protection of the Section 4(f) resource.
Prior to the Section 6009 amendment, the focus of the Section 4(f) regulation for transportation agencies was on avoiding even minor impacts or enhancement opportunities on Section 4(f) resources. The de minimis impact provision has increased emphasis on avoiding harm to the Section 4(f) resources. Several individuals interviewed, including both transportation officials and SHPOs, noted that the de minimis impact provision has shown that avoiding Section 4(f) resources at all costs has not always been in the best interests of the Section 4(f) property. These individuals indicated that a use, as defined under Section 4(f), can actually result in an enhancement to the resource. The de minimis impact provision has simplified the fulfillment of Section 4(f) requirements in cases where the official with jurisdiction initiates or sponsors the transportation project to be built. For example, many of the de minimis projects that involved parks, recreation areas, and wildlife and waterfowl refuges were projects initiated at the request of the official with jurisdiction; the use causing the impact was actually a desired use by the managers of the resource. Avoidance of the resource would make it impossible to meet the purpose of building the project in the first place—to better the resource.
Transportation Project Outcomes
Has the de minimis impact provision resulted in changes to the outcome of transportation projects?
Twenty-three (55 percent) of the Federal, State and transit transportation officials surveyed reported that the de minimis impact provision has not changed the outcome of transportation projects (see Figure 13). Most of the sample projects where the de minimis impact provision was applicable had such minor impacts to the Section 4(f) resources that additional minimization or mitigation efforts, or project design changes, were not required in order to make a de minimis impact determination.
Fifteen (36 percent) of the Federal, State and transit transportation officials perceived that the de minimis impact provision has improved transportation outcomes. When the same respondents were asked to clarify their responses during the interviews, these individuals noted that the design of the transportation projects typically does not change as a result of the de minimis impact provision, but the process of completing the transportation project is done in a more streamlined manner. For the projects in the study sample, the de minimis impact provision has improved the overall outcomes by enabling transportation projects to be completed more quickly and can reduce the cost to taxpayers (in regards to the project development and environmental review process).
Figure 13. Effect of the De Minimis Impact Provision on Transportation Project Outcomes
Of the 25 projects reviewed, 21 met the criteria for de minimis without requiring changes in the original design or the addition of mitigation measures. For these projects, no further mitigation or minimization efforts were needed to reach a de minimis determination. A likely factor for no further minimization and/or mitigation measures is due to the fact that transportation agencies already coordinate with officials with jurisdiction on developing mitigation and/or minimization measures as part of project consultation. However, some transportation agencies noted that having the flexibility to add mitigation measures to reach a de minimis impact determination may be useful to them in the future.
One of the 25 projects would not have been constructed in the absence of the de minimis processing option. This project is located in a State where the Federal Circuit District Court uses a strict interpretation of the Section 4(f) feasible and prudent standards, resulting in the State's transportation agencies avoiding the Section 4(f) process if at all possible. An individual Section 4(f) evaluation was originally drafted for the project, which involved a reduction in the number and width of the travel lanes, and the addition of more environmental commitments. However, the draft evaluation did not meet FHWA's standards for legal sufficiency approval by FHWA legal counsel. The State DOT subsequently worked with the SHPO to redesign the project. The SHPO then agreed that the newly designed project would not result in a change in the defining aspects of the historic property, and the project was able to move forward because the impact to the Section 4(f) property was de minimis. In this case, the de minimis impact provision allowed the transportation agency to balance impacts to the Section 4(f) resource with the need to construct the transportation project.
Institutional Considerations
To evaluate the implementation of the processes developed under the amendments, the study determined how field staff and other stakeholders learned about and applied the de minimis impact provision. The answers reflect concerns with the implementation of the Section 6009 amendments.
Where and how do practitioners receive guidance on the de minimis impact provision?
The DOT undertook a number of activities to ensure FHWA Division Offices, FTA Regional Offices, State DOT, transit agencies, and their counterparts understood the Section 6009 provisions. First, the procedures for determining de minimis impacts to 4(f) resources were outlined in a guidance document issued on December 13, 2005. The guidance was formally codified in regulation through the new final Section 4(f) rule in March 2008. It is anticipated that the guidance will be incorporated in a future revision of FHWA's Section 4(f) Policy Paper.11 The FHWA revised its Section 4(f) Web site12 to incorporate the updated Section 4(f) information. Nearly all transportation agency personnel interviewed highlighted the FHWA's Section 4(f) Web site as an important resource for information and guidance materials on de minimis.
The FHWA and FTA also conducted Webinar training sessions on the de minimis impact provisions. On April 12, 2006, FHWA and FTA hosted a Webinar to clarify the changes to the Section 4(f) process resulting from Section 6009. In 2008, the agencies held two additional Webinars on the final rule (April 24 and May 9). These Webinars had a total of approximately 800 participants. Nearly all of the transportation agencies interviewed attended one of the Webinars on Section 4(f).
Also, FHWA updated training courses it provides to FHWA Division Offices and State DOTs upon request which typically number at least 10 courses per year. Other internal and external outreach activities for Section 6009 include presenting on the de minimis impact provision at conferences, including FHWA's Environmental Conference (June 2008) and an American Association of State Highway and Transportation Officials (AASHTO) Standing Committee on the Environment meeting (June 2008).
The SHPOs generally relied on the transportation agencies for guidance on Section 4(f) and the de minimis impact provision. Several of the SHPOs interviewed attended one of the FHWA/FTA Webinars at the invitation of the State transportation agency, while others received guidance on de minimis through meetings with the State transportation agencies. A few of the SHPOs interviewed did not receive direct assistance on the de minimis impact provision, and instead relied upon information available on FHWAs Web site.
Unlike SHPOs who are routinely involved with transportation projects and Section 4(f) issues, many of the officials with jurisdiction over parks, recreational areas, and wildlife and waterfowl refuges have had more limited experience dealing with transportation issues. These officials with jurisdiction typically did not receive any Section 4(f) training. Instead, such officials often only learn of Section 4(f) when a Section 4(f) use may occur. When a potential Section 4(f) use arises, the transit agency, State DOT, or more typically the local public works or engineering department, will explain Section 4(f) and the de minimis impact provision to the official and provide additional sources for further information.
For practitioners, how has the process of making de minimis impact determinations evolved?
Some transportation officials expressed confusion regarding the application of the de minimis provision when it was first introduced, particularly during the interim period prior to the issuance of FHWA and FTA's guidance for determining de minimis impacts to Section 4(f) resources. In particular, some transportation agencies were unclear as to whether the de minimis impact provision should be applied to all projects with Section 106 “no adverse effect findings.” As a result, some de minimis impact determinations were made for transportation projects that did not have a Section 4(f) “use.” In addition, some of the initial de minimis impact determinations were processed without following all the steps outlined in the Section 4(f) de minimis guidance. For example, in the first few de minimis impact determinations that occurred in some States, officials with Section 4(f) jurisdiction were notified of FHWA/FTA's intent to make a de minimis impact determination, but written concurrence from the official was not obtained. Similarly, some transportation agencies initially asked the officials with Section 4(f) jurisdiction to concur with their de minimis impact determinations, believing that this was one of the requirements. However, the guidance, and later the regulation, only requires transportation agencies to notify an official with jurisdiction of FHWA's or FTA's intent to use the de minimis impact process and then obtain the official's agreement in writing to show concurrence there is no adverse impact to Section 4(f) property. As transportation agencies received additional guidance on the de minimis impact provision and as they gained experience in processing de minimis impact determinations, transportation agencies corrected their processes to ensure full consistency with the guidance.
Have any stakeholders expressed confusion or reluctance to engage with the de minimis impact provision?
The term “mitigation” might cause some confusion between Section 106 and Section 4(f) processes, as the processes use the term in different ways. Generally, under Section 106, mitigation is only considered for projects that have an adverse impact on historic properties; therefore, mitigation would not typically be considered for de minimis impact projects, which by definition are projects that have a “no adverse impact” on historic properties. However, under Section 4(f), a project's avoidance, minimization, mitigation or enhancement measures can be considered when making a determination of de minimis impact.
In addition, several of the SHPOs interviewed expressed that Section 4(f) is outside of their jurisdiction and that their primary responsibility is to ensure that the Section 106 process is followed. Some SHPOs interviewed reported having a cursory knowledge of Section 4(f). Other SHPOs interviewed were uncomfortable having the Section 106 process linked in any way to the Section 4(f) process because Section 4(f) is not within their jurisdiction. Others believe that having the de minimis impact determination tied to the “no adverse effect” or “no historic properties affected” determination is a positive for the Section 106 process. Since Section 106 is a procedural law (as opposed to Section 4(f), which is a substantive law) some SHPOs believe that having the de minimis determination based on the Section 106 finding has strengthened Section 106.
Feasible and Prudent Avoidance Alternatives Standards
Determining whether there is a feasible and prudent avoidance alternative to the use of a Section 4(f) property is a critical and often contentious element of the Section 4(f) statute. Early case law strictly interpreted what qualified as a “feasible and prudent” avoidance alternative. Beginning with the Supreme Court's decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (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 stated that an avoidance alternative to using Section 4(f) property must always be selected unless the avoidance alternative would present “uniquely difficult problems” or require “costs or community disruption of extraordinary magnitude.”13 Subsequent cases in the Fifth, Ninth, and Eleventh Federal Circuit Courts of Appeals applied this language in a manner that severely restricted the transportation agencies‘ ability to make tradeoffs among competing important resources and forced the selection of alternatives that had other significant adverse economic, social, and environmental costs, even where the impact to the Section 4(f) property was minor and could be mitigated.14
In contrast to these early strict interpretations of the Section 4(f) statute, later decisions from the Fourth, Seventh, and Tenth Federal Circuit Courts of Appeals set forth more flexible decisions on what factors may be considered and weighed by the transportation agencies when determining if an avoidance alternative is or is not feasible and prudent. These courts found that the legislative intent of Section 4(f) argues against an extreme interpretation of what qualifies as “unique” problems. In these jurisdictions the courts permitted the DOT a broader interpretation of feasible and prudent standards, allowing the balancing of competing interests and the consideration of an accumulation of issues in making a determination of whether an alternative is prudent.15
SAFETEA-LU Requirements
In order to address the inconsistent interpretations of the Overton Park decision and the resulting uncertainty surrounding the application of the feasible and prudent criteria, in Section 6009(b) of SAFETEA-LU, Congress directed the Secretary of Transportation to issue regulations that clarify the factors to be considered and the standards to be applied in determining whether alternatives are “prudent and feasible” under 23 U.S.C. 138 and 49 U.S.C. 303. Congress directed that the fundamental legal standard contained in the Overton Park decision for evaluating the prudence and feasibility of avoidance alternatives remains the legal authority for these regulations; however, the Secretary was directed to provide more detailed guidance on applying these standards on a case-by-case basis.16
Specifically SAFETEA-LU required that the regulations:
- Shall clarify the application of the legal standards to a variety of different types of transportation programs and projects depending on the circumstances of each case.
- May include, as appropriate, examples to facilitate clear and consistent interpretation by agency decisionmakers.
DOT's Rulemaking Process
In response to the SAFETEA-LU directive, FHWA and FTA began drafting modifications to the existing Section 4(f) regulations. A working group composed of legal and Section 4(f) practitioners from FHWA, FTA, and DOT's Office of the Secretary, analyzed the standards of judicial review and long standing policy in drafting new language. In addition to addressing the SAFETEA-LU requirements, the working group used the opportunity to clarify other issues surrounding Section 4(f) and codify procedures that had previously only been in agency guidance documents. The other modal DOT administrations were consulted during this process.
Through the new regulations DOT addressed the application of the Section 4(f) feasible and prudent avoidance criteria in situations where a use of a Section 4(f) property does not result in an adverse impact to the activities, features, and attributes that qualify the Section 4(f) property for protection. Furthermore, FHWA and FTA embraced the reasoning outlined by the Fourth, Seventh and Tenth Federal Circuit Courts of Appeals that the quality of the Section 4(f) resource, the relative harm to the Section 4(f) resource, transportation safety concerns, adverse impacts to non-Section 4(f) resources such as communities and natural environmental resources, and the costs of constructing and operating an alternative must be considered in determining when it is feasible and prudent to avoid a Section 4(f) property. In maintaining the legal standard contained in Overton Park, FHWA and FTA ensured that any balancing is done with a “thumb on the scale” in favor of protecting the Section 4(f) property through avoidance because of the paramount importance Section 4(f) places on these properties.
Notice of Proposed Rulemaking
On July 27, 2006, FHWA and FTA published an NPRM in the Federal Register.17 The regulation proposed six principal changes to the Section 4(f) regulation:
- Move the Section 4(f) language to a new Part: 23 CFR 774
- Define “feasible and prudent alternative”
- Outline clear criteria for selecting the alternative that causes the least overall harm
- Define and formally implement the procedures for determining a de minimis impact
- Update exceptions to Section 4(f) requirements
- Clarify the option of applying a programmatic Section 4(f) evaluation
Proposal to move the Section 4(f) language to a new Part: 23 CFR 774
The NPRM proposed to separate Section 4(f) from FHWA and FTA's NEPA regulations in 23 CFR 771 to highlight that Section 4(f) is a separate law that is considered in the DOT environmental review process. As the complexity and length of the Section 4(f) rules has grown over the years, the proposed regulation moved Section 4(f) into its own part in the CFR to facilitate ease of reference and citation. In addition to the new location, the proposed regulation also was reorganized to improve clarity and readability.
Proposed definition of “feasible and prudent alternative”
The NPRM defined a feasible and prudent avoidance alternative as one that “avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property.” The proposed definition emphasized that the use of Section 4(f) property is to be considered against competing factors with a “thumb on the scale” in favor of preserving the Section 4(f) property. The definition further stated that an alternative would be determined not feasible and prudent if:
- It cannot be built as a matter of sound engineering judgment.
- It compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need.
- It results in severe safety or operational problems.
- After reasonable mitigation, it causes:
- Severe social, economic, or environmental impacts
- Severe disruption to established communities
- Severe disproportionate impacts to minority or low income populations
- Severe impacts to environmental resources protected under other Federal statutes.
- It results in additional construction, maintenance, or operational costs of an extraordinary magnitude.
- It causes other unique problems or unusual factors.
- It involves multiple factors in paragraphs (1) through (6) of this definition, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.
Proposed criteria for selecting the alternative that causes the least overall harm when there is no avoidance alternative
For projects where all reasonable alternatives involve some use of Section 4(f) properties, (where none of the alternatives that avoid all Section 4(f) uses are prudent and feasible,) the NPRM lists factors that would be considered when making a decision on which alternative will cause the least overall harm. In developing the proposed factors, DOT drew on case law experience and FHWA's Section 4(f) Policy Paper. The factors in the NPRM were:
- The relative severity of the harm to the protected activities, attributes, or features that qualify each Section 4(f) property for protection.
- The relative significance of each Section 4(f) property.
- The views of the official(s) with jurisdiction over each Section 4(f) property.
- The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property).
- The degree to which each alternative meets the purpose and need for the project.
- The magnitude of any adverse impacts to resources not protected by Section 4(f).
- Extraordinary differences in costs among the alternatives.
- Any history of concurrent planning or development of the proposed transportation project and the Section 4(f) property.
The applicable factors and the weight given each factor would depend on the details of the particular project. The intent was to provide transportation officials with the tools to make wise decisions that would minimize overall harm while still providing special protection to Section 4(f) resources.
Proposed procedures for determining a de minimis impact
The NPRM incorporated the new provision in Section 6009(a) of SAFETEA-LU for making de minimis impact determinations. The process for determining de minimis impacts to Section 4(f) resources were previously outlined in the FHWA and FTA guidance document issued on December 13, 2005, and the NPRM proposed to formally codify this guidance in regulation. In addition to formally implementing the procedures for determining a de minimis impact, the NPRM also proposed to incorporate the definition of de minimis impact from SAFETEA-LU.
Proposed exceptions to Section 4(f) requirements
The NPRM proposed adding several new exemptions that were intended to advance the regulation's preservation purpose or that Congress created in various statutes. These were:
- Park road and parkway projects constructed under the Federal Lands Highway Program.
- Trail projects under the Recreational Trails Program.
- Enhancement and mitigation projects solely for the purpose of enhancing the activities, features, or attributes of a Section 4(f) property.
- Alternative transportation projects in parks and public lands.
- The Interstate Highway System and certain elements of the Interstate System.
Proposed clarification of the Section 4(f) Programmatic Evaluations
The NPRM proposed to formally recognize the option to conduct certain Section 4(f) evaluations on a programmatic basis. The proposed regulation specified the process for applying an existing programmatic Section 4(f) evaluation as well as the process for developing a new one.
The comment period on the Section 4(f) NPRM was open from July 26, 2006, to September 25, 2006. The FHWA and FTA received a total of 37 responses. Out of the 37 responses, 20 State and regional transportation agencies submitted 17 responses; trade associations submitted 6 responses; 11 national and local environmental advocacy groups submitted 9 responses; 2 responses were from Federal agencies; 1 response was from a SHPO; and 2 responses were from private individuals. The trade associations submitting comments were: AASHTO, 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 DOI and the ACHP. The national environmental advocacy organizations submitting comments included the National Recreation and Park Association, the Nature Conservancy, the National Trust for Historic Preservation, the Rails to Trails Conservancy, the Surface Transportation Policy Project, the Natural Resources Defense Council, and Environmental Defense.
Response to Comments
The DOT reviewed and fully considered each of the 37 comment letters received.18 The working group that drafted the proposed regulations met almost weekly for over a year to analyze the stakeholders’ recommendations. After much analysis, the working group made changes to the proposed regulations where it was determined appropriate to do so. The reasons for adopting or not adopting changes suggested by the commenters are documented in the preamble section of the final rule.
Final Rule
On March 12, 2008, FHWA and FTA published the final Section 4(f) rule in the Federal Register19 and it took effect on April 11, 2008. How each of the six principal changes proposed in the NPRM, noted above, are addressed in the final rule is outlined below.
The final rule moved the regulation implementing the Section 4(f) law from 23 CFR 771 to 23 CFR 774 and reorganized it to improve clarity and readability as follows:
- 774.1 Purpose
- 774.3 Section 4(f) approvals
- 774.5 Coordination
- 774.7 Documentation
- 774.9 Timing
- 774.11 Applicability
- 774.13 Exceptions
- 774.15 Constructive use determinations
- 774.17 Definitions
The final rule defines feasible and prudent avoidance alternative as follows:
- A feasible and prudent avoidance alternative avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property. In assessing the importance of protecting the Section 4(f) property, it is appropriate to consider the relative value of the resource to the preservation purpose of the statute.
The definition emphasizes that the use of Section 4(f) property is to be balanced against competing factors while considering the relative value of the Section 4(f) property in light of the Section 4(f) statute, keeping a “thumb on the scale” in favor of preserving the Section 4(f) property. The competing factors must pose severe problems or impacts that are not easily mitigated. The final rule defines an alternative as not feasible if it cannot be constructed on the basis of sound engineering judgment. Whereas, an alternative is not prudent if:
- It compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need
- It results in unacceptable safety or operational problems
- After reasonable mitigation, it still causes:
- Severe social, economic, or environmental impacts
- Severe disruption to established communities
- Severe disproportionate impacts to minority or low income populations
- Severe impacts to environmental resources protected under other Federal statutes
- It results in additional construction, maintenance, or operational costs of an extraordinary magnitude
- It causes other unique problems or unusual factors
- It involves multiple factors (listed above in this definition), that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude
For projects where all of the reasonable alternatives involve some use of Section 4(f) property, the final rule lists factors that are to be considered when making a decision as to which alternative will cause the least overall harm. The least overall harm alternative is determined by balancing the following factors:
- The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property).
- The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection.
- The relative significance of each Section 4(f) property.
- The views of the official(s) with jurisdiction over each Section 4(f) property.
- The degree to which each alternative meets the purpose and need for the project.
- After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f).
- Substantial differences in costs among the alternatives
The selected alternative must include all reasonable measures to minimize harm or mitigate adverse impacts identified in the Section 4(f) evaluation to the Section 4(f) property(ies).
The final rule language concerning the de minimis provision remained substantially the same as the NPRM. For Section 4(f) exceptions, the proposed exception for the Alternative Transportation in Parks and Public Lands program (49 U.S.C. 5320) was not included in the final rule and additional clarification to the other exceptions was incorporated. The Section 4(f) programmatic evaluation language was modified for clarification and otherwise remained substantially unchanged.
Phase II of this study will evaluate the implementation of the new prudent and feasible standards through at least March 1, 2010.
Conclusions
Phase I of the Section 6009 implementation study presents the participants’ initial perceptions of the affects of the de minimis impact provision. Although the sample for this study may not be representative of the entire population of de minimis impact determinations, the study carefully considered and disclosed the limitations involved. This study supports the determination that the de minimis impact provision has predominately streamlined the Section 4(f) process for projects, while maintaining protection of those important resources. Given the lack of quantitative data on the duration of and costs associated with the Section 4(f) process, it is not possible to measure the time and costs savings attributable to the de minimis impact provision. However, the majority of transportation officials (79 percent) surveyed as part of the implementation study shared the perception that the de minimis impact provision has reduced the amount of time necessary to comply with Section 4(f). Further, 57 percent reported that application of the de minimis impact provision has decreased the cost associated with fulfilling the Section 4(f) requirements. Generally, interviewees reported that the most significant time savings element of the de minimis impact provision has been the elimination of the requirement to design and evaluate alternatives. While transportation officials reported that the estimated time savings were minimal, any time savings in the project development process could be beneficial in an industry that relies on schedule performance.
Officials with Section 4(f) jurisdiction have not perceived time and cost savings, though none of the officials interviewed found that the de minimis impact provision had created additional work or increased the length of time needed to fulfill their Section 4(f) responsibilities. While not directly experiencing efficiency gains, officials with jurisdiction reported benefiting from the transportation agencies’ motivation to protect the resource knowing that a de minimis impact determination could mean a streamlined transportation project. In addition, the five park, recreation, and refuge officials that were interviewed perceived benefitting from an increased involvement in the Section 4(f) process. Because the de minimis impact provision has encouraged improved coordination, transportation agencies learned more about the activities, features, and attributes of the Section 4(f) resources since they had an incentive to design projects sensitive to those elements in order to make a de minimis impact determination.
The de minimis impact provision provides a common sense approach to fulfilling the Section 4(f) requirements for projects that clearly have no adverse impact on the Section 4(f) resources. The Phase I evaluation results suggest that the de minimis impact provision can enable transportation agencies to better balance the delivery of transportation projects with protection of public owned parks, recreation areas, wildlife and waterfowl refuges, and public and private historical sites. In addition, for the initial sample analyzed, the de minimis impact provision has primarily simplified the fulfillment of Section 4(f) requirements, particularly in cases where the official with jurisdiction initiates or sponsors the transportation project. In such cases, the managers of the resource desire the Section 4(f) use, as it results in an improvement to the resource.
Phase II of the Section 6009 implementation study will further evaluate the use of the de minimis impact provision, as well as the implementation and outcomes of the new feasible and prudent avoidance alternative standards and factors.
1 Federal Register, March 12, 2008 (Volume 73, Number 49): https://www.gpo.gov/fdsys/pkg/FR-2008-03-12/html/E8-4596.htm
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2 The unit of analysis is the property upon which a de minimis impact finding is determined. A project may have one or more Section 4(f) property with de minimis impacts.
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3 The 52 FHWA Federal-aid Division Offices are in the 50 states, Puerto Rico, and the District of Columbia, and the 3 Federal Lands Highway Division Offices are in the eastern, central, and western areas of the U.S.
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4 If a random sample had been chosen, the study could have excluded some of the less represented categories of projects.
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5 The mean number of projects with de minimis impact findings per state is 4.5, with a standard deviation of 5.4. The ranges represented one, two, and three standard deviations from the mean.
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6 Per Table 1, a 26th project was included in the final sample. Information collected from the state was incomplete due to medical and non-response issues on the part of the respondent. For this reason, the state was not included in the study.
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7 In total, 42 transportation officials completed the survey, including 21 Federal transportation agency staff and 21 State transportation agency staff. One FHWA Division Office and three State DOTs had two staff members submit pre-interview questionnaires. All other transportation agencies submitted one pre-interview questionnaire.
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8 Where multiple Section 4(f) resources are present in the study area and potentially used by a transportation project, de minimis impact findings must be made for each individual Section 4(f) resource.
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9 The Section 4(f) process is considered complete once FHWA and/or FTA has approved the Section 4(f) evaluation or made a de minimis determination.
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10 Section 4(f) programmatic evaluations are specific to FHWA. As of the date of this report, FTA has not approved any Section 4(f) programmatic evaluations for application to transit projects.
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11 Section 4(f) Policy Paper. (2005). Available at https://www.environment.fhwa.dot.gov/legislation/section4f/4fpolicy.aspx
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12 FHWA Section 4(f) Web site: https://www.environment.fhwa.dot.gov/legislation/section4f.aspx
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13 Citizens to Preserve Overton Park v Volpe, 401 U.S. 402 (1971). Available at
https://caselaw.findlaw.com/us-supreme-court/401/402.html
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14 See Louisiana Environmental Soviet v. Coleman, 537 F.2d 79 (5th Cir 1976); Stop H-3 Association v. Brinegar, 533 F.2d 434 (9th Cir. 1976); and Druid Hills v. FHWA, 772 F.2d 700 (11th Cir. 1985).
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15 See Hickory Neighborhood Defense League v. Skinner, 910 F.2d 159, 163 (4th Cir. 1990); Eagle Foundation, Inc v. Dole, 813 F.2d 798, 804 (7th Cir. 1987); and Committee to Preserve Boomer Lake Park v. U.S. DOT, 4 F.3d 1543, 1550 (10th Cir. 1993).
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16 House of Representatives. “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. Conference Report of the Committee of Conference on H.R. 3” 109th Congress. 1st Session. Report 109-23, p 1058. https://www.gpo.gov/fdsys/pkg/PLAW-109publ59/pdf/PLAW-109publ59.pdf (January 30, 2008).
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17 FR, Vol. 71, No. 144, page 42611-42622
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18 FHWA's and FTA's response to the public comments are summarized in the Final Rule, available at https://www.gpo.gov/fdsys/pkg/FR-2008-03-12/html/E8-4596.htm
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19 FR. Vol. 73, No. 49, page 13367-13401
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