SAFETEALU 6009 Section 4f Web Conference April 12, 2006

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SAFETEA-LU 6009 - Section 4(f)Web
ConferenceApril 12, 2006
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De Minimis ImpactsImplementation Study Feasible
and Prudent Standard
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De Minimis Impacts

• Final Guidance issued on 12/13/2005
• Joint with FTA
• Developed by Team of Division Office, Resource
  Center, HQ and Chief Counsel
• Coordination with OST and FAA

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De minimis Impacts

• All classes of action CE, EA, EIS
• Individual resources - not project basis
• Impact after mitigation or enhancement
• Section 4(f) process complete upon making the
  finding
• Division Administrators authority

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Historic Properties

• Concurrence of the SHPO and/or THPO in Section
  106 no adverse effect" or "no historic
  properties affected
• Agency informs the SHPO and/or THPO of intent to
  make de minimis impact finding based on written
  Section 106 concurrence
• Agency has considered the views of the consulting
  parties in Section 106 consultation

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Historic Properties

• Project
• Inform SHPO and/or THPO at time of request for
  concurrence in Section 106 determination
• Programmatic Agreements
• document understanding of the parties by
  appending the written notice to the existing PA,
  or by amending the PA

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Parks, Recreation Areas,

• 4(f) use after mitigation or enhancement does not
  adversely affect activities, features and
  attributes of 4(f) resource
• Officials with jurisdiction are informed of
  agencys 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

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Questions on a Question

• Part 1. Question F. How should the de minimis
  impacts to Section 4(f) resources be considered
  in the alternative selection process when all
  feasible and prudent alternatives result in
  Section 4(f) use?

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Post Guidance Questions

• What are the similarities and differences between
  the de minimis impact provision and the Net
  Benefit Programmatic?
• Under what circumstances would one apply but not
  the other?

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Net Benefit - De minimis Impact

• Net benefit programmatic is a Section 4(f)
  evaluation - de minimis finding satisfies Section
  4(f), no evaluation required
• Impact threshold for de minimis finding - net
  benefit can result from degrees of effect
• Similar coordination and agreement essential
• No legal sufficiency review
• Opportunity for public review and comment

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Other Post Guidance Issues

• What would be considered the opportunity for
  public review and comment with CEs?
• How much documentation is necessary?
• Is a separate document or section of the NEPA
  document required for de minimis impacts and
  approvals?
• Is legal sufficiency review required?

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Implementation Study

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

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Implementation Study

• Information, guidance, request for data and
  Spreadsheet provided - 3/20/2006
• Quarterly reports requested first one due May
  10, 2006
• Please send completed spreadsheet or nothing to
  report to 6009studydata_at_dot.gov

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Quarterly Reports

• Baseline Data - basic, factual and required
  information
• Project data, cost, 4(f) resources
• Supporting Data - substantive information
• de minimis finding process
• mitigation or enhancement measures
• additional relevant comments concerning the
  project and de minimis findings

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Prudent and Feasible Standard

• Rulemaking in progress, to
• Clarify the prudent and feasible avoidance
  alternatives standards
• Clarify the application of legal standards to
  avariety of transportation programs and projects

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• Questions ?