[Federal Register Volume 67, Number 243 (Wednesday, December 18, 2002)]
[Notices]
[Pages 77551-77555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31888]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

Federal Transit Administration

[FHWA Docket No. FHWA-2002-13290]


Draft Nationwide Section 4(f) Evaluation and Proposed 
Determination for Federal-Aid Transportation Projects That Have a Net 
Benefit to a Section 4(f) Property

AGENCIES: Federal Highway Administration (FHWA), Federal Transit 
Administration (FTA), DOT.

ACTION: Notice and request for comments.

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SUMMARY: The FHWA jointly with the FTA proposes a nationwide 
programmatic Section 4(f) evaluation (programmatic evaluation) for use 
in certain federally assisted or direct Federal transportation 
improvement projects where the use of land from a Section 4(f) park, 
recreation area, wildlife or waterfowl refuge, or historic property 
will result in a net benefit to the Section 4(f) property. The use of 
such a programmatic evaluation is intended to promote environmental 
stewardship and streamline the Section 4(f) process by reducing the 
time necessary to prepare an evaluation that satisfies Section 4(f) 
requirements. This programmatic evaluation would provide an additional 
procedural option for demonstrating compliance with the requirements of 
Section 4(f). It would supplement existing nationwide Section 4(f) 
evaluations all of which would

[[Page 77552]]

remain in effect. The FHWA and the FTA solicit comments on this 
proposed nationwide programmatic Section 4(f) evaluation that could be 
used in certain instances where the effects of a proposed 
transportation project result in a net benefit to a Section 4(f) 
property.

DATES: Comments must be received on or before February 18, 2003.

ADDRESSES: Submit written, signed comments to FHWA Docket No. FHWA-
2002-13290 to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 
Seventh Street, SW., Washington, DC 20590-0001, or submit 
electronically at http://dms.dot.gov/submit. All comments should 
include the docket number that appears in the heading of this document. 
All comments received will be available for examination and copying at 
the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped postcard or you may 
print the acknowledgement page that appears after submitting comments 
electronically.

FOR FURTHER INFORMATION CONTACT: For FHWA: Mr. Leland Dong, Office of 
Project Development and Environmental Review, HEPE, (202) 366-2058; Ms. 
April Marchese, Office of the Chief Counsel, HCC-30 (202) 366-0791. 
FHWA office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through 
Friday, except Federal holidays. For FTA: Mr. Joseph Ossi, Office of 
Planning, TPL-22, (202) 366-0096; Mr. Scott Biehl, Office of the Chief 
Counsel, TCC-30, (202) 366-0952. FTA office hours are from 8:30 a.m. to 
5:00 p.m. e.t., Monday through Friday, except Federal holidays. Both 
offices are located at 400 Seventh Street SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:
    Electronic Access and Filing: You may submit or retrieve comments 
online through the Document Management System (DMS) at: http://dms.dot.gov/submit. Acceptable formats include: MS Word (versions 95 to 
97), MS Word for Mac (versions 6 to 8), Rich Text File (RTF), American 
Standard Code Information Interchange (ASCII)(TXT), Portable Document 
Format (PDF), and WordPerfect (versions 7 or 8). The DMS is available 
24 hours each day, 365 days each year. Electronic submission and 
retrieval help and guidelines are available under the help section of 
the web site.
    An electronic copy of this document may also be downloaded from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661 by using a computer, modem and suitable communications 
software. Internet users may also reach the Office of the Federal 
Register's home page at: http://www.archives.gov and the Government 
Printing Office's web page at: http://www.access.gpo.gov/nara.

Background

    Federally aided and direct Federal transportation projects that 
propose to use land from significant public parks, recreation areas, 
and wildlife and/or waterfowl refuges, or from significant historic 
sites are subject to Section 4(1) \1\ of the U.S. Department of 
Transportation Act of 1966 (Public Law 89-670, 80 Stat. 931, October 
15, 1966), a provision now codified in Title 49 United States Code, 
section 303 (the Act). The Act prohibits such use unless the FHWA or 
FTA determines that: (1) There is no feasible and prudent avoidance 
alternative; and (2) that the project includes all possible planning to 
minimize harm to the Section 4(f) property.
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    \1\ Section 4(f) of the U.S. DOT Act of 1966, as subsequently 
amended, stated in relevant part:
    ``(b) The Secretary of Transportation shall cooperate with the 
Secretaries of the Interior, Housing and Urban Development, and 
Agriculture, and with the States in developing transportation plans 
and programs that include measures to maintain or enhance the 
natural beauty of lands crossed by transportation activities.
    (c) The Secretary may approve a transportation program or 
project requiring the use (other than any project for a park road or 
parkway under section 204 of title 23) of publically owned land of a 
public park, recreation area, or wildlife and waterfowl refuge of 
national, State, or local significance, or land of an historic site 
of national, State, or local significance (as determined by the 
Federal, State, or local officials having jurisdiction over the 
park, area, refuge, or site) only if--
    (1) there is no prudent and feasible alternative to using that 
land; and
    (2) the program or project includes all possible planning to 
minimize harm to the park, recreation area, wildlife and waterfowl 
refuge, or historic site resulting from the use.'' 49 U.S.C 303.
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    These efforts are normally documented in an individual Section 4(f) 
evaluation. For FHWA projects, it may be possible to utilize one of 
four nationwide programmatic Section 4(f) evaluations that were 
developed for specific circumstances.\2\ It should be noted that the 
FTA has not previously made any programmatic Section 4(f) 
determinations.
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    \2\ Final Nationwide Section 4(f) Evaluations and Approvals for 
Federally-Aided Highway Projects with Minor Involvements With Public 
Parks, Recreational Lands, Wildlife and Waterfowl Refuges, and 
Historic Sites; see 52 FR 31111, August 19, 1987. The Final 
Nationwide Section 4(f) Evaluation and Approval for Federally-Aided 
Highway Projects With Minor Involvements With Historic Sites was 
also published on August 19, 1987, and can be found at 52 FR 31118.
    See also a notice regarding programmatic Section 4(f) evaluation 
and approval for FHWA projects that necessitate the use of historic 
bridges. This notice is entitled, ``Historic Bridges; Programmatic 
Section 4(f) Evaluation and Approval'' and was published in the 
Federal Register on August 22, 1983, at 48 FR 38135. Negative 
Declaration/Section 4(f) Statement for Independent Bikeway or 
Walkway Construction Projects, FHWA Memorandum, May 23, 1977.
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    The benefits of nationwide programmatic Section 4(f) evaluations 
are realized by substantially reducing the time and effort necessary to 
satisfy the requirements of the Act, however, each has specific 
limiting applicability criteria. For projects that do not meet the 
applicability criteria, the FHWA or the FTA must prepare an individual, 
case-specific Section 4(f) evaluation.
    The purpose in drafting this proposed nationwide programmatic 
Section 4(f) evaluation is to address projects that have a net benefit, 
or enhancement to a Section 4(f) property. Currently, if a 
transportation project proposes a use of a Section 4(f) property, it is 
possible that none of the existing nationwide programmatic Section 4(f) 
evaluations can be utilized, even if transportation officials and 
officials having jurisdiction over the Section 4(f) property all agree 
that there would be a net benefit to the Section 4(f) property. 
Officials having jurisdiction may include: Federal, State or local park 
authorities; in the case of historic resources, the State Historic 
Preservation Officer (SHPO); or when appropriate, the Tribal Historic 
Preservation Officer (THPO); and any other official having official 
involvement (i.e. Department of Interior (DOI) representative because 
of funding from the Land and Water Conservation Fund Act, etc.). A net 
benefit is achieved when the use and mitigation measures result in an 
overall enhancement, as compared to the do-nothing alternative, in the 
functions and values for which the 4(f) property was originally 
determined eligible for Section 4(f) protection.

Description of Proposed Action

    This action presents a proposed nationwide programmatic evaluation 
that could be used when there is a net benefit to a Section 4(f) 
property. The applicability criteria for this proposed programmatic 
evaluation states that all parties must agree with the assessment of 
the impacts of the project; the proposed mitigation and other measures 
must preserve and enhance those activities, features, or attributes of 
the Section 4(f) property that originally qualified the property for 
Section 4(f) protection when compared to the avoidance or the do-
nothing alternatives; and the result must be a net benefit to the 
Section 4(f) property. If

[[Page 77553]]

agreement cannot be reached, then the programmatic evaluation cannot be 
utilized.
    Use of this proposed programmatic evaluation has the potential to 
streamline the existing Section 4(f) process by allowing the 
programmatic evaluation in lieu of an individual Section 4(f) 
evaluation. The programmatic evaluation is also allowed in conjunction 
with an Environmental Impact Statement (EIS) required by the National 
Environmental Policy Act of 1969 (42 U.S.C 4331 et al.).\3\
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    \3\ The National Environmental Policy Act of 1969 (NEPA) states 
that Environmental Impact Statements (EIS) are required for all 
major Federal actions (or those involving Federal monies) that could 
have a significant effect on the environment.
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Examples

    We thought it would be beneficial to list some examples of projects 
having net benefits to Section 4(f) resources. These examples are as 
follows:
    One typical example of a net benefit is the reconstruction of a 
deteriorated or lost historic feature (such as a rock wall) of a 
historic Section 4(f) property in a location slightly different than 
originally sited because of a needed improvement to the adjacent 
transportation facility. Although the property owner, the SHPO and the 
transportation agency all agree that the reconstruction would enhance 
the property, even with the loss of historic land, the consultation 
required by Section 106 of the National Historic Preservation Act (16 
U.S.C. 470f) \4\ would likely result in an ``adverse affect'' 
determination. In such a case, the existing FHWA nationwide 
programmatic evaluation for historic sites would not be applicable. 
However, in this situation this proposed programmatic evaluation would 
be applicable.
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    \4\ Section 106 (16 U.S.C. 470f) states that ``The head of any 
Federal agency having direct or indirect jurisdiction over a 
proposed Federal or federally assisted undertaking in any State and 
the head of any Federal department or independent agency having 
authority to license any undertaking shall, prior to the approval of 
the expenditure of any Federal funds on the undertaking or prior to 
the issuance of any license, as the case may be, take into account 
the effect of the undertaking on any district, site, building, 
structure, or object that is included in or eligible for inclusion 
in the National Register. The head of any such Federal agency shall 
afford the Advisory Council on Historic Preservation established 
under Title II of this Act a reasonable opportunity to comment with 
regard to such undertaking.''
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    A second example could be a partial or even total relocation of a 
Section 4(f) property (such as a small community park) to a location 
within the community that would have a greater value and use to that 
community. In this case, the existing nationwide park programmatic 
could not be used since there is impairment of the remaining Section 
4(f) land. Again, this proposed programmatic evaluation would be 
applicable. A third example is the placement of transportation guide 
signs for a recreation facility within the boundary of the Section 4(f) 
property. The signs would benefit both the traveling public and the 
Section 4(f) property itself; however, placement location could be 
considered a permanent use and one of the existing programmatics would 
not be applicable. Therefore, the proposed programmatic evaluation 
would be beneficial.
    A final example is the renovation of an historic railroad station 
to maintain its major historic elements and to permit its continued use 
as a historic transportation facility. In most cases, such renovation, 
even with considerable sensitivity to the historic character of the 
resource, cannot be accomplished without an adverse effect on the 
station. Therefore, neither the regulatory provision at 23 CFR 
771.135(f) related to historic transportation facilities nor the 
historic site programmatic could be utilized. The adverse effect may be 
caused, for example, by modifications to provide access for the 
disabled or by interior reconfiguration to provide retail space to keep 
the station economically viable as a transportation facility. The 
benefits of the restoration of the station and the assurance of its 
continued use for its historic purpose may greatly outweigh the small 
adverse effect.
    However, there may be times when the proposed programmatic 
evaluation would not apply. For example, the owner of a historic 
building has abandoned the building so that it is likely to continue to 
deteriorate. The transportation agency proposes to demolish the 
building for a transportation improvement, and agrees to record the 
building in accordance with the standards set by the Historic American 
Building Survey (HABS) \5\ prior to its demolition. In the project 
design year (20 years hence) without the project, the building may be 
effectively demolished through neglect. In the design year of the 
project, the building will be demolished but a record of the building 
will be made. The SHPO agrees that having the record of the demolished 
building is an improvement over not having such a record. Nevertheless, 
this programmatic evaluation would not apply because it requires that 
the improvement of the resource be relative to the present-day 
condition and status of the resource. The future condition of the 
resource without the project is too speculative to serve as the basis 
for deciding whether there is a benefit to the resource. An individual 
Section 4(f) evaluation would be needed.
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    \5\ The Secretary of the Interior issued Standards for 
Architectural and Engineering Documentation in the Federal Register 
on September 29, 1983. These standards are commonly known as the 
Historic American Building Survey/Historic American Engineering 
Record (HABS/HAER) Standards for the HABS/HAER program of the 
National Park Service. These Standards are available at the 
following URL: http://www.cr.nps.gov/habshaer/pubs/sisgaed.pdf.
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Mechanics

    When it is necessary to use this proposed programmatic evaluation, 
the FHWA Division Administrator/Division Engineer or FTA Regional 
Administrator will make the appropriate Section 4(f) determination only 
after assuring and documenting that the project meets the applicability 
criteria provided in the programmatic evaluation, that the alternatives 
to the use of Section 4(f) property have been fully considered, that 
the measures to minimize harm and mitigation efforts agreed upon by the 
officials with net benefit to the Section 4(f) property, and that such 
measures have been incorporated into the project.

    Authority: 49 U.S.C. 303; 23 U.S.C. 138; 49 CFR 1.48.

    Issued on: December 11, 2002.
Jennifer L. Dorn,
Federal Transit Administrator.
Mary E. Peters,
Federal Highway Administrator.
    The text of the FHWA/FTA Proposed Programmatic Section 4(f) 
Evaluation and Approval for Transportation Projects That Have a Net 
Benefit to a Section 4(f) Property is as follows:

Department of Transportation

Federal Highway Administration

Federal Transit Administration

Proposed Programmatic Section 4 (F) Evaluation and Approval for 
Transportation Projects That Have a Net Benefit to a Section 4(F) 
Property

    This nationwide programmatic Section 4(f) evaluation (programmatic 
evaluation) has been prepared for transportation improvement projects 
on existing or new alignments that will use land of a Section 4(f) 
park, recreation area, wildlife or waterfowl refuge, or historic 
property, which in the view of the official with jurisdiction over the 
Section 4(f) land, the use of the Section 4(f) land will result in a 
net benefit to the Section 4(f) property. This programmatic evaluation 
satisfies the requirements of Section 4(f) for projects meeting the 
applicability criteria listed below. An individual Section 4(f)

[[Page 77554]]

evaluation will not need to be prepared for such projects.
    ``Administration'' refers to the Federal Highway Division 
Administrator or Division Engineer (as appropriate) for the Federal 
Highway Administration, and the Regional Administrator for the Federal 
Transit Administration.
    The Administration is responsible for review of each transportation 
project for which this programmatic evaluation is contemplated to 
determine that it meets the criteria and procedures of this 
programmatic evaluation. The information and determination will be 
included in the applicable National Environmental Policy Act (NEPA) 
documentation. This programmatic evaluation will not change any 
existing procedures for NEPA compliance, public involvement, National 
Historic Preservation Act (NHPA) Section 106 consultation procedures, 
Land and Water Conservation Fund Act Section 6(f) requirements, or any 
other applicable Federal environmental requirements.

Applicability

    This programmatic evaluation may be applied by the Administration 
to projects meeting the following criteria:
    1. The proposed transportation project uses land of a Section 4(f) 
park, recreation area, wildlife or waterfowl refuge, or historic site.
    2. The proposed project resulting in the use of the Section 4(f) 
land includes all appropriate measures to minimize harm and mitigation 
to preserve, rehabilitate, and enhance the activities, features, or 
attributes of the property that originally qualified the property for 
Section 4(f) protection.
    3. For historic Section 4(f) properties, the project does not 
require the demolition or major alteration of the characteristics that 
qualify the property for the National Register of Historic Places 
(NRHP). Nor does the project require the disturbance or removal of 
archaeological properties that are determined important for 
preservation in-place rather than information obtained through data 
recovery. The determination of a major alteration or the importance to 
preserve in-place will be based on consultation in accordance with 36 
CFR part 800.
    4. In accordance with 36 CFR part 800, for historic Section 4(f) 
properties, there must be agreement reached amongst the SHPO or THPO, 
as appropriate, transportation officials, and other appropriate 
parties, on mitigation to minimize harm when there is a use of Section 
4(f) property. Such measures must be incorporated into the project.
    5. The officials with jurisdiction over the Section 4(f) property, 
or the SHPO/THPO (for historic/historic tribal properties) agree in 
writing with the assessment of the impacts, the proposed measures to 
minimize harm and mitigation necessary to preserve and enhance those 
activities, features, or attributes of the Section 4(f) property, and 
that the mitigation will result in a net benefit to the Section 4(f) 
property. A net benefit is achieved when the use and subsequent 
measures to minimize harm and mitigation result in an overall 
enhancement when compared to the do-nothing or avoidance alternatives 
using the functions and values that made the property eligible for 
Section 4(f) protection. A project does not achieve a ``net benefit'' 
if it will result in a substantial diminishment of any particular 
function or value that made the property eligible for Section 4(f) 
protection, even if the property overall is enhanced.
    6. The Administration determines that the project facts match those 
set forth in the Applicability, Alternatives, Findings, and Mitigation 
sections of this programmatic evaluation.
    This programmatic evaluation can be applied to any project 
regardless of class of action under NEPA.

Alternatives

    To demonstrate that there is no feasible and prudent alternative to 
the use of Section 4(f) property, the programmatic evaluation analysis 
must address alternatives that avoid the Section 4(f) land. The 
following alternatives avoid the use of the Section 4(f) land:
    1. Do nothing.
    2. Improve the transportation facility in a manner that addresses 
the project's purpose and need without a use of the Section 4(f) 
property.
    3. Build the transportation facility at a location that does not 
require use of the Section 4(f) property.
    This list is intended to be all-inclusive. The programmatic 
evaluation does not apply if a feasible and prudent alternative is 
identified that is not discussed in this document. The project record 
must clearly demonstrate that each of the above alternatives was fully 
evaluated before the Administration can conclude that the programmatic 
evaluation can be applied to the project.

Findings

    For this programmatic evaluation to be applied to a project, there 
must be a finding that the do-nothing and avoidance alternatives are 
not feasible and prudent. The finding must be supported by the 
circumstances, studies, consultations, and other relevant information 
for the project. To support the finding, adverse factors associated 
with the avoidance alternative, such as environmental impacts, safety 
and geometric problems, decreased transportation service, increased 
costs, and any other factors may be considered collectively. An 
accumulation of these kinds of problems must be of extraordinary 
magnitude when compared to the proposed use of the Section 4(f) land to 
determine that alternative is not feasible and prudent. The net impact 
of any no-build or build alternative must also consider the before-and-
after value and benefit of the Section 4(f) property itself and 
relationship to the surrounding area or community:
    1. Do Nothing Alternative.
    The Do Nothing Alternative is not feasible and prudent because it 
would neither address nor correct the transportation need cited in the 
Purpose and Need, which necessitated the proposed project.
    2. Improve the facility in a manner that addresses purpose and need 
without use of the Section 4(f) property.
    It is not feasible and prudent to avoid Section 4(f) lands by using 
engineering design or transportation system management techniques, such 
as minor location shifts, changes in engineering design standards, use 
of retaining walls and/or other structures, and traffic diversions or 
other traffic management measures. Implementing such measures would 
result in:
    (a) Substantial adverse community impacts to adjacent homes, 
businesses or other improved properties;
    (b) Substantially increased transportation facility or structure 
cost;
    (c) Unique engineering, traffic, maintenance, or safety problems;
    (d) Substantial adverse social, economic, or environmental impacts;
    (e) A substantial missed opportunity to benefit a Section 4(f) 
property;
    (f) Identified transportation needs not being met; or
    (g) Impacts, costs, or problems of truly unusual or unique, or 
extraordinary magnitude when compared with the proposed use of Section 
4(f) lands after taking into account proposed measures to minimize use 
and mitigate for adverse uses, and enhance the functions and value of 
the Section 4(f) property. Flexibility in the use of applicable 
standards is encouraged during the analysis of this alternative.
    3. Build a new facility at a new location without a use of the 
Section 4(f) property.

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    It is not feasible and prudent to avoid Section 4(f) lands by 
constructing at a new location because:
    (a) A new location would not address or correct the problems cited 
in the Purpose and Need, which necessitated the proposed project;
    (b) A new location would result in substantial adverse social, 
economic, or environmental impacts (including such impacts as extensive 
severing of productive farmlands, displacement of a substantial number 
of families or businesses, serious disruption of community cohesion, 
substantial damage to wetlands or other sensitive natural areas, or 
greater impacts to other Section 4(f) lands);
    (c) A new location would substantially increase costs or cause 
substantial engineering difficulties (such as an inability to achieve 
minimum design standards, or to meet the requirements of various 
permitting agencies such as those involved with navigation, pollution, 
or the environment); or
    (d) Problems, impacts, costs, or difficulties would be truly 
unusual or unique, or of extraordinary magnitude when compared with the 
proposed use of the Section 4(f) property after taking into account 
proposed measures to minimize use, mitigation for adverse uses, and the 
enhancement of the Section 4(f) property's functions and value.
    Flexibility in the use of applicable standards is encouraged during 
the analysis of this alternative.

Measures To Minimize Harm and Mitigation

    This programmatic evaluation and approval may be used only for 
projects where the Administration, in accordance with this evaluation, 
ensures that the proposed action includes all possible planning to 
minimize harm and includes mitigation measures, and that the agency 
with jurisdiction agrees in writing with the assessment that the 
project, including measures to minimize harm, will have a net benefit 
and contribute towards the preservation and enhancement of the function 
and values of the Section 4(f) property.

Coordination

    In early stages of project development, each project will require 
coordination with the Federal, State, and/or local agency officials 
having jurisdiction over the Section 4(f) property. For non-Federal 
Section 4(f) properties, i.e. State or local properties, the official 
with jurisdiction will be asked to identify any Federal encumbrances. 
When encumbrances exist, coordination will be required with the Federal 
agency responsible for such encumbrances.
    Copies of the final written support required under this 
programmatic Section 4(f) evaluation shall be provided to the 
official(s) having jurisdiction over the Section 4(f) property and to 
other interested parties as part of the normal NEPA documentation 
process, or upon request.
    The Administration will coordinate with the appropriate U.S. Coast 
Guard District Commander before applying this programmatic evaluation 
to projects requiring a Section 9 Bridge Permit.

Public Involvement

    The project includes public involvement activities that are 
consistent with the specific requirements of 23 CFR 771.111--Early 
coordination, public involvement and project development. For a project 
where one or more public hearings are held, information on the proposed 
use of the Section 4(f) land is communicated at the public hearing(s).

Approval Procedure

    This programmatic Section 4(f) approval applies only after the 
Administration has:
    1. Determined that the project meets the applicability criteria set 
forth in Applicability section;
    2. Determined that all of the alternatives set forth in the 
Findings section have been fully evaluated;
    3. Determined that the findings in this document (which conclude 
that the alternative recommended is the only feasible and prudent 
alternative) results in a clear net benefit to the function and value 
of the Section 4(f) property;
    4. Determined that the project complies with the Measures to 
Minimize Harm and Mitigation section of this document;
    5. Determined that the coordination and public involvement 
indicated in this programmatic evaluation have been successfully 
completed and necessary written agreements have been obtained; and
    6. Documented the information that clearly identifies the basis for 
the above determinations and assurances.
    Pursuant to Section 4(f), this statement has been coordinated with 
the Departments of Interior, Agriculture, Housing and Urban 
Development, and the Advisory Council on Historic Preservation.

[FR Doc. 02-31888 Filed 12-17-02; 8:45 am]
BILLING CODE 4910-22-P