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Overview

INTRODUCTION TO SECTION 4(f) Presented by Ian Chidister Environmental Program Manager FHWA – Wisconsin Division December 4, 2013. Overview. Background Information General 4(f) Applicability Protected 4(f) Resources Types of 4(f) “Use” Parks, Recreation Areas, and Refuges; other encumbrances

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Overview

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  1. INTRODUCTIONTOSECTION 4(f)Presented byIan ChidisterEnvironmental Program ManagerFHWA – Wisconsin DivisionDecember 4, 2013

  2. Overview Background Information General 4(f) Applicability Protected 4(f) Resources Types of 4(f) “Use” Parks, Recreation Areas, and Refuges; other encumbrances 4(f) Process and Roles Reference Resources

  3. Background • USDOT agencies have authority to administer 4(f) and make approvals; other agencies participate in consultation • Called “4(f)” because it was originally section 4(f) of the Department of Transportation act of 1966 • Codified in 23 USC 138 & 49 USC 303 • Regulations in 23 CFR 774 • Recently updated FHWA policy paper (2012) replaces 2005 version

  4. General Applicability Does the project require an approval from FHWA (funding or other)? Is the project a transportation project? Does the project require use of land from a protected 4(f) resource? None of the regulatory applicability rules or exceptions applies (23 CFR 774.11 & 13)

  5. Protected 4(f) Resources • Parks and recreation areas of national, state, or local significance that are publicly owned and open to the public • Resource assumed significant unless official with jurisdiction says it’s not • Publicly owned wildlife and waterfowl refuges of national, state, or local significance (may be open to the public) • Resource assumed significant unless official with jurisdiction says it’s not • Historic sites of national, state, or local significance in public or private ownership regardless of whether they are open to the public • Significant = eligible or listed on NRHP

  6. Wisconsin Examples of Resources Parks & Recreation Areas: Elver Park, Madison, WI Photo Credits: www.clker.com; www.madnorski.org

  7. Wisconsin Examples of Resources Publicly Owned Refuges: Horicon Marsh NWR, Mayville, WI Photo Credits: www.clker.com; http://en.wikipedia.org/

  8. Wisconsin Examples of Resources Historic Sites: Taliesin, Spring Green, WI Photo Credits: www.clker.com; http://commons.wikimedia.org/

  9. Types of 4(f) “Use” • Permanent incorporation of land into a transportation facility • Most common kind of 4(f) use • Temporary Occupancy • Use vs no use determination based on 5 conditions • Property adversely affected, but not permanently incorporated • If a temporary occupancy is determined to be a use, it must be documented using one of the 3 kinds of documentation • Constructive Use • No land acquisition – proximity impacts only • Must result in substantial impairment of activities, features, or attributes • Requires coordination with FHWA HQ

  10. Documenting Use • Full 4(f) Evaluation • Can only be approved if no avoidance alternatives are feasible (engineering) and prudent (6 factors) • Select alternative with least overall harm (7 factors) • Incorporate all possible planning to minimize harm • De Minimis Finding • Incorporates measures to minimize harm (avoid, minimize, mitigate, enhance) • Does not require avoidance alternatives or feasible/prudent analysis • Programmatic Evaluation (5 types – see website) • 5 types include: (1) bikeways/walkways, (2) historic bridges, (3) historic sites, (4) parks/rec areas/refuges, and (5) net benefit • Require avoidance alternatives analysis and all possible planning to minimize harm

  11. Parks, Recreation Areas, & Refuges • Defining Factors: • Official Designation (Federal, State, Local) • Primary Purpose • Demonstrated by a management plan or other documents • Significance • Based primarily on the opinion of the official(s) with jurisdiction • Public Ownership • Easements can constitute public ownership • Open to the Public • Not necessary for refuge properties

  12. Other Encumbrances • Examples: • Land and Water Conservation Fund Act (Section 6(f)) • 36CFR 59.3, National Park Service LWCF Assistance Manual • Wildlife Restoration Act (Pittman-Robertson Act) • 50 CFR 80.135, FWS Fed Assistance Program Guidance • Sport Fish Restoration Act (Dingell-Johnson Act) • 50 CFR 80.135, FWS Fed Assistance Program Guidance • Rules: • 4(f) may or may not apply to these lands depending on their park, recreation, or refuge purposes • Compliance with 4(f) does not relieve FHWA and WisDOT of separate compliance with the other laws • Documentation developed for 4(f) compliance may aid demonstration of compliance with other laws

  13. 4(f) Process: Agency Roles • FHWA • Makes final determinations on 4(f) eligibility and impacts • Coordinates full 4(f) reviews with legal counsel and US Dept of Interior • Provides final review and approval of 4(f) evaluations • WisDOT • Identifies potential 4(f) resources and project impacts on resources • Coordinates with other stakeholders on potential resources and impacts • Prepares 4(f) documentation for review and approval by FHWA • WDNR • Assists WisDOT and FHWA in the identification of potential 4(f) resources • Provides information on resource purpose, activities, and management • When DNR owns land, acts as the official with jurisdiction for significance, de minimis, and programmatic determinations

  14. Project Development Process

  15. NEPA, 4(f), and 6(f) Process

  16. Reference Resources • FHWA 4(f) Website – http://environment.fhwa.dot.gov/4f/index.asp

  17. Review • What are the general applicability rules for 4(f)? • (1) FHWA approval, (2) Transportation project, (3) Use of land from 4(f) resource, (4) Exceptions • What are the 3 types of property that 4(f) protects? • (1) Parks, Rec Areas, (2) Refuges, (3) Historic Sites • What are the 3 kinds of use under 4(f)? • (1) Permanent Incorporation, (2) Temporary Occupancy, (3) Constructive • What are the 3 ways to document a 4(f) use? • (1) Full, (2) De Minimis, (3) Programmatic • What are the 4(f) roles of WisDOT, WDNR, and FHWA? • Resource Identification, Coordination, Documentation, Official With Jurisdiction, Review and Approval

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