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Section 4(f) Compliance

Section 4(f) Compliance. From De Minimis Impacts to Net Benefits. Lamar S. Smith, CEP Project Development and Environmental Review. De Minimis Impact Guidance. Criteria for parks, recreation areas, and refuges and historic properties All classes of action

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Section 4(f) Compliance

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

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

  3. For Historic Properties • SHPO and/or THPO written concurrence in Section 106 “no adverse effect" or "no historic properties affected“ • SHPO and/or THPO is informed of FHWA’s intent to make de minimis impact finding based on the Section 106 concurrence • FHWA has considered the views of the consulting parties in Section 106 consultation

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

  5. For Parks, Rec. Areas, … • 4(f) use, after mitigation / enhancement, does not adversely affect Section 4(f) activities, features and attributes • Officials with jurisdiction are informed of FHWA’s intent to make de minimis impact finding based on written concurrence • Public has been given an opportunity to review and comment on the effects to the Section 4(f) resource

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

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

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

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

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

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