[Federal Register Volume 70, Number 75 (Wednesday, April 20, 2005)]
[Notices]
[Pages 20618-20630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7812]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2002-13290]


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

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice.

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SUMMARY: The FHWA is issuing this approved final nationwide 
programmatic Section 4(f) evaluation (programmatic evaluation) for use 
in certain Federal (Federal-aid or Federal Lands Highway) 
transportation improvement projects where the use of publicly owned 
property from a Section 4(f) park, recreation area, or wildlife and 
waterfowl refuge or property from a historic site results in a net 
benefit to the Section 4(f) property. The application of this 
programmatic evaluation is intended to promote environmental 
stewardship by encouraging the development of measures that enhance 
Section 4(f) properties and to streamline the Section 4(f) process by 
reducing the time it takes to prepare, review and circulate a draft and 
final individual Section 4(f) Evaluation (individual evaluation) that 
documents compliance with Section 4(f) requirements. This programmatic 
evaluation provides a procedural option for demonstrating compliance 
with the statutory requirements of Section 4(f) and is an addition to 
the existing nationwide programmatic evaluations, all of which remain 
in effect. This programmatic evaluation can be applied to specific 
project situations that fit the criteria contained in the Applicability 
section. To fully realize the streamlining benefits of this 
programmatic evaluation, the FHWA and the Applicant (defined later) are 
encouraged to initiate coordination with the official(s) with 
jurisdiction (defined later) over a Section 4(f) property as early as 
possible and practicable to facilitate the assessment of benefits and 
harm to a Section 4(f) property.

EFFECTIVE DATE: April 20, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. Lamar S. Smith, Office of Project 
Development and Environmental Review, HEPE, (202) 366-8994 and Ms. 
Diane Mobley, Office of the Chief Counsel, HCC-30, (202) 366-1366. FHWA 
office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through 
Friday, except Federal holidays. The offices are located at 400 Seventh 
Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this notice may be downloaded using a 
computer, modem, and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may reach the Office of the Federal Register's 
home page at http://www.archives.gov and the Government Printing 
Office's Web site at http://

[[Page 20619]]

www.access.gpo.gov. An electronic version of the programmatic 
evaluation may be downloaded at the FHWA Web site: http://www.environment.fhwa.dot.gov/guidebook/gbwhatsnew.htm.

Contents of Preamble

     Background on the Nationwide Section 4(f) Evaluation and 
Determination.
     Description of Action.
     Why Issue a New Nationwide Section 4(f) Evaluation?
     Actions Taken to Date.
     Comments and Responses on the Draft Nationwide Section 
4(f) Evaluation and Determination.
     Examples.

Background on the Nationwide Section 4(f) Evaluation and Determination

    The FTA initially anticipated participating in this proposed 
programmatic evaluation as reflected in the 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 published at 67 FR 77551, on December 18, 2002. The FTA 
currently utilizes no programmatic evaluation and relies on individual 
evaluations to satisfy the requirements of Section 4(f) for transit 
projects that use Section 4(f) properties. Upon further transit program 
and policy review, the FTA has elected not to participate in this 
programmatic evaluation and will continue to perform individual Section 
4(f) evaluations in all cases.
    Proposed federally funded highway projects that would use property 
from significant publicly owned public parks, recreation areas, or 
wildlife and waterfowl refuges or from significant historic sites are 
subject to Section 4(f) 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. Section 4(f) 
prohibits such use unless the FHWA 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. These efforts are normally documented in an individual 
evaluation or one of four existing nationwide programmatic evaluations. 
For some FHWA projects, it may be possible to utilize one or more 
programmatic evaluations that were developed for specific 
circumstances.\1\
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    \1\ Final Nationwide Section 4(f) Evaluation and Approval for 
Federally-Aided Highway Projects With Minor Involvements With Public 
Parks, Recreational Lands, and Wildlife and Waterfowl Refuges, 
Issued December 23, 1986, Published in Federal Register, August 19, 
1987, and can be found at 52 FR 31111.
    Final Nationwide Section 4(f) Evaluation and Approval for 
Federally-Aided Highway Projects With Minor Involvements With 
Historic Sites, Issued December 23, 1986, Published in Federal 
Register, August 19, 1987, and can be found at 52 FR 31118. 
Department of Transportation, Federal Highway Administration--
Programmatic Section 4(f) Evaluation and Approval for FHWA Projects 
that Necessitate the Use of Historic Bridges, Issued July 5, 1983, 
Published in Federal Register, August 22, 1983, and can be found at 
48 FR 38135.
    Negative Declaration/Section 4(f) Statement for Independent 
Bikeway or Walkway Construction Projects, FHWA Memorandum, May 23, 
1977, and can be found at http.//www.environment.fhwa.dot.gov/projdev/4fbikeways.htm.
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    Court decisions, particularly in the 1970s, resulted in strict 
interpretations of Section 4(f) requirements. Many of these early 
decisions resulted from large projects that impacted Section 4(f) 
properties during the peak of Interstate highway construction and 
expansion. In recent years, however, some courts have provided a more 
flexible interpretation, responding to the reduction in the severity of 
impacts and a transportation program that is currently focused more on 
system preservation and modernization than on expansion.
    Programmatic evaluations reduce the processing time and effort 
necessary to document the analysis and illustrate that the Section 4(f) 
requirements have been met. Each of the programmatic evaluations 
contains specific and limiting applicability criteria and findings. For 
projects that do not meet the specified applicability criteria, the 
FHWA must prepare and circulate for comment, a draft individual 
evaluation, which is subject to internal legal sufficiency review prior 
to approval and circulation of a final individual Section 4(f) 
evaluation.

Description of Action

    This programmatic evaluation facilitates compliance with Section 
4(f) requirements for those situations in which there is agreement 
among the FHWA, the Applicant and the official(s) with jurisdiction 
over the Section 4(f) property that the transportation use of Section 
4(f) property, the measures to minimize harm and the mitigation 
incorporated into the project will result in a net benefit to the 
Section 4(f) property. If an agreement on net benefit cannot be reached 
among the FHWA, the Applicant and the official(s) with jurisdiction 
over the Section 4(f) property, then this programmatic evaluation 
cannot be used. This programmatic evaluation may be used, when 
applicable, for a project of any class of action as defined in 23 CFR 
771.115 of the FHWA Environmental Impact and Related Procedures 
(National Environmental Policy Act (NEPA) regulations).

Why Issue a New Nationwide Programmatic Section 4(f) Evaluation?

    Individual evaluations are approved after extensive internal review 
and interagency coordination. The internal process consists of a review 
of both a draft and final evaluation by the FHWA Division Office and, 
in some cases, the FHWA Headquarters Office. In addition, each final 
individual evaluation undergoes a separate review by the FHWA Office of 
Chief Counsel to ensure legal sufficiency. Interagency coordination is 
undertaken on all individual evaluations with the official(s) with 
jurisdiction over the Section 4(f) property and with the DOI. A draft 
individual Section 4(f) evaluation is provided for coordination and 
comment for a minimum of 45 days and a final individual Section 4(f) 
evaluation is prepared to support the FHWA Section 4(f) determination. 
In addition, the U.S. Departments of Agriculture (USDA) and Housing and 
Urban Development (HUD) are consulted on those projects involving a 
Section 4(f) property for which they have program responsibilities.
    The process associated with individual evaluation documentation, 
review and consultation is time consuming. The process is appropriate 
for projects that have the potential to substantially impair, through 
use, the activities, features or attributes that qualify the property 
for Section 4(f) protection. For other projects, where the use of 
Section 4(f) property is minor and/or does not result in a substantial 
impairment of specific qualities that make a property eligible for 
Section 4(f) protection, the project is still subject to the same 
thorough and time-consuming process of evaluation, unless it qualifies 
for a simplified review under one of the existing programmatic 
evaluations. This programmatic evaluation is intended to address those 
projects where there is agreement among the FHWA, the Applicant and the 
official(s) with jurisdiction that, (1) a use of property does not 
result in a substantial impairment; (2) the project includes all 
possible planning to minimize harm, including mitigation; and (3) that 
the cumulative result is an overall improvement and enhancement of the 
Section 4(f) property.
    An understanding of the intent of this programmatic evaluation, 
applicability requirements and the meaning of net benefit is a 
prerequisite to agreement.

[[Page 20620]]

Where conflict arises in reaching agreement with the official(s) with 
jurisdiction, the FHWA should assess the nature of the disagreement to 
determine whether it is procedural or substantive (related to the 
applicability criteria of the actual project action) before deciding 
not to use this programmatic evaluation. If substantive disagreement 
persists, then this programmatic evaluation cannot be used.
    As established in this programmatic evaluation, the Administration 
will review the specific facts of a project, compare them to the 
applicability requirements of the programmatic evaluation and determine 
if it is applicable. When applicable, appropriate supporting 
documentation will be placed in the project file and/or referenced in 
the appropriate environmental document. Since this programmatic 
evaluation was reviewed and determined to be legally sufficient 
according to the requirements of 23 CFR 771.135(k), the utilization of 
this programmatic evaluation on specific projects will not require 
legal sufficiency review under 23 CFR 771.135(k). Similarly, 
interagency coordination is streamlined, as described in this 
programmatic evaluation, by consulting only with the official(s) with 
jurisdiction, and not with DOI, USDA, or HUD, except when those 
agencies have an official responsibility related to the property or 
where conversion of the 4(f) property to highway use is encumbered such 
that, specific subsequent agency action will be required (e.g., lands 
acquired with Land and Water Conservation Fund Act (LWCFA) assistance, 
16 U.S.C. 460l(8)(f)(3)). It is estimated that these streamlining steps 
will reduce processing and approval time for certain projects by 3 to 6 
months. Of equal importance is the extent of internal review and 
interagency coordination, which will be commensurate with the severity 
of impacts and the potential for enhancement of the Section 4(f) 
property.

Actions Taken to Date

    The 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 was published on December 18, 2002, 
at 67 FR 77551, requesting public and agency comment (FHWA Docket No. 
FHWA-2002-13290). The proposed programmatic evaluation was provided 
specifically to the DOI, the USDA, HUD and the Advisory Council on 
Historic Preservation (ACHP).
    After careful analysis of all comments received, the FHWA has 
decided to finalize and approve this programmatic evaluation. Minor 
changes have been made in this final programmatic evaluation to add 
clarity and incorporate suggested improvements from insightful 
comments. This decision is based upon the belief that the programmatic 
evaluation will assure full compliance with the statute while enhancing 
Section 4(f) properties and reducing duplicative administrative 
processes for eligible projects. The decision is consistent with 
congressional streamlining initiatives.

Comments and Responses on the Draft Nationwide Programmatic Section 
4(f) Evaluation

    The following discussion is a summary of comments received on the 
draft programmatic evaluation. Responses are provided on how the FHWA 
considered and addressed the concerns and/or issues raised.
    Comments were received from 18 entities, including Federal 
agencies, two national transportation organizations, one national 
environmental organization, eight State transportation agencies, one 
transit agency, two State resource agencies, and two private consulting 
firms. Commenters included the Department of the Interior (DOI), and 
the National Park Service (NPS), the American Highway Users Alliance 
(AHUA), the American Association of State Highway and Transportation 
Officials (AASHTO), the Sierra Club, the State of California Department 
of Transportation (CALTRANS), the Maryland State Highway Administration 
(MDSHA), the Pennsylvania Department of Transportation (PennDOT), the 
New York State Department of Transportation (NYSDOT), the Missouri 
Department of Transportation (MODOT), the Texas Department of 
Transportation (TXDOT), the Wisconsin Department of Transportation 
(WIDOT), the Washington State Department of Transportation (WSDOT), the 
Central Puget Sound Regional Transit Authority (Sound Transit), the 
State of Alabama Historical Commission (AHC), the Wyoming Game and Fish 
Department (WGF) through its Office of Federal Land Policy, 
Transportation Environmental Management Inc. (TEM) and the HR Green 
Company (HR Green). In addition, the FTA provided comments and 
recommendations for consideration prior to its decision not to be a 
participant in the programmatic evaluation.
    Many comments were general in nature and are summarized and 
addressed collectively under the following general comment headings: 
General Comments, Net Benefit, Official(s) with Jurisdiction, and 
Section 106 Integration. Many comments included recommendations related 
to a specific section of the programmatic evaluation which are 
addressed in the section-by-section analysis.
    A number of the specific comments received, focused on the overall 
reform of Section 4(f) and suggested that this programmatic evaluation 
does not do enough to reform and streamline existing Section 4(f) 
requirements. All comments and recommendations have been read and 
considered by the FHWA. These concerns are beyond the scope of this 
effort and have not been addressed in this document.

General Comments

    Comments received demonstrated a need for additional definition of 
terms used in the final programmatic evaluation. Definitions were added 
for: ``Administration'', ``Applicant'', ``net-benefit'' and ``officials 
with jurisdiction.''
    ``Administration'' refers to the Federal Highway Administration, 
FHWA Division Administrator or Division Engineer.
    ``Applicant'' refers to the State Highway Agency or State 
Department of Transportation, or local governmental agency acting 
through the State Highway Agency or State Department of Transportation.
    A ``net benefit'' is achieved when the transportation use, the 
measures to minimize harm and the mitigation incorporated into the 
project results in an overall enhancement of the Section 4(f) property 
when compared to both the future do-nothing or avoidance alternatives 
and the present condition of the Section 4(f) property taking into 
consideration the activities, features and attributes that qualify the 
property for Section 4(f) protection. A project does not achieve a 
``net benefit'' if it will result in a substantial diminishment of 
specific functions or values that made the property eligible for 
Section 4(f) protection.
    ``Official(s) with jurisdiction'' over Section 4(f) property 
(typically) include: for a park, the Federal, State or local park 
authorities or agencies that own and/or manage the park; for a refuge, 
the Federal, State or local wildlife or waterfowl refuge owners and 
managers; and for historic sites, the State Historic Preservation 
Officer (SHPO) or Tribal Historic Preservation Officer (THPO), 
whichever has jurisdiction under Section 106 of the National Historic 
Preservation Act (16 U.S.C. 470f).

[[Page 20621]]

    Many commenters expressed overall support for the programmatic 
evaluation. They generally recognized and noted the potential benefits 
of the programmatic evaluation in streamlining the procedural 
requirements of Section 4(f), such as reducing paperwork and internal 
review, while at the same time, encouraging enhancement of Section 4(f) 
properties and promoting environmental stewardship.
    The guiding principle regarding the use of the programmatic 
evaluation is that there must be a ``net benefit'' to the Section 4(f) 
property. The ability of the FHWA, the Applicant and the official(s) 
with jurisdiction to reach agreement with respect to the impacts, 
measures to minimize harm, mitigation and that a net benefit will 
result is inherent in the decision of whether or not the programmatic 
evaluation is applicable. ``Negotiations'' in this regard, should be no 
more complicated or require skills other than those required for normal 
project development and Section 4(f) consultations related to impacts, 
measures to minimize harm and mitigation.
    A situation where the necessary agreement or determination of 
applicability is substantially difficult to achieve or make may be an 
indication that an individual Section 4(f) evaluation is appropriate in 
that case. On the other hand, this situation may be an indication that 
one or more of the participants lack understanding of the intent of the 
programmatic evaluation or the individual applicability requirements. 
As stated above, an understanding of the intent of the applicability 
and net benefit requirements is a prerequisite to agreement. Where 
conflict arises in coordinating agreement with the officials with 
jurisdiction, the FHWA should assess the nature of the disagreement to 
see if it is procedural or substantive before deciding not to use this 
programmatic evaluation.
    The FHWA is committed to providing additional guidance, if needed, 
on a case-by-case basis to ensure that misunderstanding about the 
intent of the programmatic evaluation is not an impediment to its use.
    Although only a few comments received can be characterized as 
negative or in general opposition to this programmatic evaluation, many 
commenters requested clarification and/or refinement of the language 
used.
    The Sierra Club generally objected to the programmatic evaluation 
because in its view, it contradicts judicial interpretations of Section 
4(f), derails the regulatory safeguards and circumvents the 4(f) 
mandate that special effort be taken to preserve the natural beauty of 
the countryside, public park and recreation lands, wildlife and 
waterfowl refuges, and historic sites. The Sierra Club also suggested 
that FHWA has provided no evidence that the new programmatic evaluation 
will result in any tangible benefits to areas currently protected under 
Section 4(f) and the streamlining approach may severely reduce the 
number of protected natural areas and historic sites.
    This programmatic evaluation is not a waiver or relaxation of any 
of the Section 4(f) standards or judicial interpretations of the 
legislative requirements. All existing Section 4(f) legislative 
provisions remain intact. In addition, the use of the programmatic 
evaluation will allow an increase in environmental stewardship 
opportunities resulting in greater protection and enhancement of 
Section 4(f) protected properties.
    The requirement for a documented agreement of the resulting net 
benefit to a Section 4(f) property will safeguard the preservation 
provisions of Section 4(f) law by ensuring that there will be an 
enhancement of the functions and values that originally qualified the 
property for Section 4(f) protection. There is no less protection 
afforded by this programmatic evaluation than with an individual 
evaluation and its application will allow a more efficient process of 
the regulatory requirements.
    The DOI was neutral regarding the advantages of the programmatic 
evaluation and recommended that FHWA expand on and clarify what ``net 
benefits'' to a Section 4(f) property means, especially with regard to 
resources under its jurisdiction. The DOI also noted that that without 
further clarification the programmatic may not satisfy the statutory 
mandate to consult with DOI on Section 4(f) issues. In response to this 
and other similar comments, we have clarified the definition of ``net 
benefit'' in the final programmatic.
    The PennDOT commented that the programmatic would provide some time 
savings in processes but that it would be limited. The NYSDOT and the 
TEM offered similar comments regarding limited benefit, suggesting that 
the procedure for utilizing a programmatic evaluation is the same as 
that required for an individual evaluation.
    The intent of this programmatic evaluation is to address 
administrative burden when it is in the interest of all parties 
involved to take an action where a use of Section 4(f) property will 
result in an enhancement of that property. There may be a limited 
history of experience with this programmatic evaluation; however, there 
are many examples of ``missed opportunities'' to benefit or enhance an 
existing property where a transportation use was imminent.
    This programmatic evaluation constitutes an approved evaluation for 
which the FHWA need only to demonstrate compliance with the criteria 
contained in the programmatic evaluation. The independent review by the 
DOI and the USDA or HUD official(s) of the draft and final individual 
Section 4(f) evaluations and the legal sufficiency review by the FHWA 
necessary for an individual evaluation are not required for this or 
other programmatic evaluations. In many instances the time necessary to 
conduct these regulatory internal reviews for individual Section 4(f) 
evaluations are not apparent to the parties not directly involved in 
the evaluation process. Procedurally, the time savings may be limited 
to 3 to 6 months in normal project development; however, the overall 
benefit is enough to encourage its use and will result in efforts that 
enhance Section 4(f) properties while avoiding some procedural steps.
    The Sierra Club commented that the proposed changes do not 
``streamline'' the Section 4(f) procedural requirements. As an example, 
the Sierra Club noted that the programmatic evaluation cannot be 
utilized if a feasible and prudent alternative exists and when a 
project has no prudent and feasible alternative, the agency with 
jurisdiction must agree to mitigation measures to ensure the proposed 
action results in a net benefit. The Sierra Club further opined that 
under this scenario, the programmatic evaluation expands FHWA's 
discretion and the review process, without full consideration of 
benefits or losses to Section 4(f) areas.
    As stated above, the programmatic evaluation does not waive any of 
the existing Section 4(f) requirements including the determination that 
there are no feasible and prudent avoidance alternatives to the Section 
4(f) use of the property, and that the project includes all possible 
measures to minimize harm to the Section 4(f) property. The savings 
that are being sought through use of the programmatic evaluation come 
from eliminating internal reviews within the FHWA and the case-by-case 
coordination with the DOI and other Federal agencies currently required 
for individual evaluations. Coordination, consultation and agreement 
with the officials with jurisdiction are essential components of 
compliance.

[[Page 20622]]

    There is an important distinction to be made in understanding the 
programmatic evaluation and how the agreement of net benefit is 
reached, documented, and approved by the Administration. Comments 
received from the Sierra Club and others appear to have interpreted the 
FHWA as the ``official with jurisdiction.'' This is not the case. For 
clarification, the definition of ``official(s) with jurisdiction'' was 
added to the final programmatic evaluation. The Sierra Club's concerns 
regarding the expansion of agency discretion are unfounded, given that 
the FHWA must reach an agreement with the official(s) with jurisdiction 
over the Section 4(f) property in order for the programmatic evaluation 
to apply. If anything, the role of the officials with jurisdiction is 
enhanced due to their required participation and agreement on achieving 
a net benefit.
    The MDSHA and the AHC commented that the official(s) with 
jurisdiction over Section 4(f) property may be the SHPO or THPO and 
recommended changes to Applicability, Item Number 5 to denote that 
official(s) with jurisdiction may include the SHPO or THPO.
    The definition of ``officials with jurisdiction'' has been 
clarified as to the role of the SHPO or THPO as the official in the 
case of historic properties. As previously noted, there may be 
instances where a Section 4(f) property has more than one official with 
jurisdiction.
    The Sierra Club expressed concern that without a coherent set of 
criteria to measure the impact of the project on the Section 4(f) area 
itself, the proposed changes alter the FHWA's role in parkland and 
historic site preservation by placing undue weight on external factors.
    The role of the FHWA throughout the history of Section 4(f) has 
been to protect and preserve specific defined properties. That role or 
responsibility does not change with this programmatic evaluation; 
indeed, protection of Section 4(f) properties is enhanced, by providing 
an incentive to improve the property and a less cumbersome mechanism 
when agreement on net benefit can be reached.
    The FHWA retains the responsibility for determining the 
applicability of Section 4(f) and of this programmatic evaluation, 
which is dependent on agreement of net benefit. The FHWA will give 
deference to the official(s) with jurisdiction to assist in determining 
whether the project will ``substantially diminish'' the function or 
values for which Section 4(f) was found to be applicable to the 
property, and all parties involved must reach agreement as to whether a 
proposed project will result in a ``net benefit'' to the property. If 
agreement is not reached, this programmatic evaluation will not apply.
    The programmatic evaluation also does not include impact criteria 
as part of the applicability standards. This was done intentionally to 
allow the official(s) with jurisdiction, the FHWA and the Applicant 
flexibility in determining the measures appropriate to each individual 
property necessary to generate a net benefit. Deference is given to 
officials with jurisdiction, who have special expertise in the 
property, to determine positive outcomes where there will be a use of 
the property by a transportation project.
    Through the review of all the comments, it was noted that some 
questions or confusion might be attributable to the inconsistent use of 
the terms Section 4(f) ``land'', ``property'' and ``resource'' 
throughout Section 4(f) regulations, guidance, documents and even the 
statute itself. For this final programmatic evaluation, the term 
``property'' has been used as consistently as possible, when not quoted 
from or directly related to the language of an existing document.

Net Benefit

    Several commenters asked for further clarification on what 
constitutes a ``net benefit'' and who makes that determination.
    The DOI suggested that the term ``net benefits'' is subjective and 
could potentially lead to counterproductive proposals. DOI recommended 
that the definition of ``net benefit'' to Section 4(f) property be 
expanded and clarified.
    Both the ACH and the MDSHA questioned how and by whom the 
determination of ``net benefit'' would be made. Several commenters also 
recommended that criteria be developed to ensure that people with 
knowledge about the property have key roles in the determination of net 
benefit.
    There is a wide range of what will constitute a net benefit, which 
will vary depending on the property and the project situation. In other 
words, net benefit determination is property and project specific, 
rather than generally subjective, and the development of criteria would 
serve to restrict the ability to develop mutually agreeable net 
benefits. For this reason the FHWA, the Applicant and the official(s) 
with jurisdiction must work collaboratively to define and agree upon 
what is reasonable and required to achieve a net benefit to a 
particular Section 4(f) property, on a case-by-case basis. Each of the 
participants plays an important role in this joint determination to 
ensure that individual resource experts will be involved. Net benefit 
is a joint decision, but it is only one of the prerequisites to 
application of this programmatic evaluation. Consistent with the 
responsibilities and authorities provided by Section 4(f) itself, the 
FHWA will determine whether the proposed action satisfies the 
applicability criteria for the use of this programmatic evaluation.
    The AASHTO recognized one major difference in this programmatic 
evaluation compared to the existing programmatic evaluations related to 
historic properties considered under the National Historic Preservation 
Act. In some cases, this programmatic evaluation could apply where a 
Section 106 ``adverse effect'' finding has been made. The AASHTO, 
however, expressed some concern that it would apply only if the project 
had a net benefit on each individual historic property affected by the 
project and recommended that the programmatic evaluation allow the net 
``benefit'' finding to be made for the project as whole rather than 
each individual property affected by a project. Similarly the NYSDOT 
recommended revising the net benefit finding to apply to the project as 
a whole, as a change more likely to promote environmental stewardship.
    As noted earlier, this programmatic evaluation does not allow for 
the waiver or relaxation of existing Section 4(f) standards or the 
judicial interpretation of the legislative requirements. As such, each 
Section 4(f) protected property must continue to be considered 
individually as is currently required for any project or Section 4(f) 
evaluation. Generally speaking, impacts and benefits to individual 
Section 4(f) properties must be considered when applying the 
Applicability criteria. An individual Section 4(f) property, such as an 
historic district or park complex, might have multiple components. The 
net benefit must be achieved for an individual Section 4(f) property 
and for the functions and values that qualified that property for 
Section 4(f) protection. Although a historic district may experience a 
net benefit and be appropriately covered by this programmatic 
evaluation, each property within the historic district that is 
individually eligible for the National Register and is used by the 
project must be considered separately under this programmatic 
evaluation, if it applies, or in an individual Section 4(f) evaluation.
    There can be impacts to the functions and values of the Section 
4(f) property,

[[Page 20623]]

but these impacts cannot reach a level of ``substantial diminishment'' 
as determined by the FHWA. This determination will be made in 
consultation with the official(s) with jurisdiction. For instance, 
there may be general agreement among the FHWA, the Applicant and the 
official(s) with jurisdiction that an overall enhancement to a Section 
4(f) property is achievable. However, if the official with jurisdiction 
believes that the functions and values that made the property eligible 
for Section 4(f) protection will be substantially diminished upon 
completion of the project, then the FHWA must find that the 
programmatic evaluation is not applicable and that the protected 
property requires the preparation of an individual Section 4(f) 
evaluation.
    The AASHTO recommended that the net benefit finding take into 
account the likely future condition of the historic property if the 
transportation project is not implemented, e.g., the potential for 
demolition of the historic property by a private landowner.
    The revised definition of net benefit included in the final 
programmatic evaluation addresses this comment, in part. This 
determination relies on a comparison of Section 4(f) functions and 
values of the property without the transportation project and use to 
determine net benefit.
    The WIDOT commented that agreements on what constitutes ``net 
benefit'' could be difficult to reach among the stakeholders involved.
    The WIDOT recognized the potential difficulties that may occur when 
working out the details sufficiently enough that all officials with 
jurisdiction are satisfied that a net benefit will result. Because the 
range of what constitutes a net benefit will vary from property to 
property, by the official(s) with jurisdiction, and by the policies of 
both the FHWA and the Applicant, creative measures used to achieve net 
benefits on a project level should be developed and shared with the 
larger environmental and transportation community in the form of ``Best 
Practices.'' The flexibility inherent within the language of the 
programmatic evaluation provides official(s) with jurisdiction an 
opportunity and incentive to participate in efforts that maintain and 
achieve benefits to Section 4(f) properties under their protection. The 
Applicant and the FHWA are encouraged to communicate the beneficial 
qualities of the programmatic evaluation with the official(s) with 
jurisdiction in order to maximize its potential benefit to the Section 
4(f) property.
    Several commenters noted that the use of the term ``net benefit'' 
is inconsistent throughout the programmatic evaluation. It was unclear 
whether there merely needs to be a net benefit, or does the project 
have to preserve, rehabilitate, enhance, and have a net benefit. It was 
further noted that in some situations, it would be difficult to argue 
that the project does all four even though it may have an overall net 
benefit.
    From these comments and others, the FHWA recognizes the need to 
clarify the term ``net benefit.'' Therefore, as noted above, the 
definition of net benefit has been modified and simplified for 
consistency in the final programmatic evaluation. This definition 
clarifies that the resulting Section 4(f) functions and values of the 
property are ``better,'' overall, than if the project did not use the 
Section 4(f) property. The ``net benefit'' determination may be based 
on a number of approaches to mitigate and minimize harm as long as 
there is an overall enhancement or betterment from the future do-
nothing or avoidance condition.
    As previously discussed, further instruction has been provided in 
this programmatic evaluation on how the net benefit is determined and 
by whom it is determined.
    The NPS expressed concern with the definition of ``net benefit'' 
and objected to the inclusion of the ``substantial diminishment'' 
requirement without providing standards for measuring what is or is not 
substantial.
    The subjectivity of individual values and functions of a 
significant Section 4(f) property demonstrate the variability of 
impacts, mitigation, and net benefits, thus, providing guidance or 
strict criteria on this determination may be viewed as overly 
prescriptive. There is similar subjectivity and context in determining 
``substantial diminishment.'' For these reasons, it is important to 
consider the insight of the official(s) with jurisdiction when it comes 
to deciding ``net benefit'' and/or ``substantial diminishment'' and the 
officials with jurisdiction are in the best position to assist in these 
determinations. Therefore, some deference should be given to the 
officials with jurisdiction when determining if the project will 
``substantially diminish'' the activities, features or attributes that 
qualify the property for Section 4(f) protection. And this 
determination is essential to deciding if there is a ``net benefit.'' 
If agreement on net benefit cannot be reached, this programmatic 
evaluation will not apply to the property.

Officials With Jurisdiction

    Addressing park, recreational, wildlife and waterfowl resources and 
cultural, historic, and tribal properties within a single nationwide 
programmatic evaluation has created some confusion when discussing 
coordination with appropriate individuals or official(s) with 
jurisdiction. Several comments were received that reflect a general 
concern about the definition and intended role of the official(s) with 
jurisdiction.
    For example, the AHC asked that the programmatic evaluation clarify 
who has official jurisdiction over Section 4(f) property and whether it 
must take the SHPO's advice into consideration.
    A substantial effort has been made to clarify language in the final 
programmatic evaluation. Consistent with existing Section 4(f) 
regulations and guidance, whichever of the SHPO and/or THPO has 
responsibility under the Section 106 regulations is considered the 
official with jurisdiction over an historic property. The FHWA must 
seek and consider the opinion of the SHPO when determining effect under 
the Section 106 regulations and would likewise, under Section 4(f), 
seek the opinion of the SHPO as an official with jurisdiction when 
determining whether a net benefit will result from the Section 4(f) use 
of an historic site. In an example of an historic park owned by a 
municipality that was purchased with funding from the Land and Water 
Conservation Funds Act, the officials with jurisdiction would be the 
municipal parks department and the SHPO. All officials with 
jurisdiction must agree with a net benefit determination to a Section 
4(f) property for this programmatic evaluation to apply. Coordination 
with the NPS would also be required in this case, relative to its 
responsibilities under the LWCFA, to assist in determining appropriate 
and acceptable mitigation for the project's Section 4(f) use.

Section 106 Integration

    Several commenters expressed a desire to improve the integration of 
Section 4(f) requirements with those of the Section 106 process. The 
NYSDOT commented that the programmatic evaluation would do little or 
nothing to streamline the Section 4(f) process with respect to an 
historic property. The TEM recommended that the programmatic evaluation 
``adopt'' the conclusion of the Section 106 process such that, if a 
project has been found to have no effect, no adverse effect, or results 
in a MOU that addresses adverse effects, it should

[[Page 20624]]

be exempt from Section 4(f) requirements on that basis.
    The current laws and regulations continue to apply. The FHWA has, 
to the extent consistent with both laws, combined the common elements 
of the two processes for this programmatic evaluation. Much of the 
coordination required, the assessment of impacts, and mitigation is 
basically the same whether intended to comply with NEPA, Section 106 or 
Section 4(f). An integrated approach that satisfies multiple 
requirements is consistent with existing FHWA policy to use the NEPA 
process as the ``umbrella'' under which all environmental and related 
laws and regulations are addressed. It is within the unique 
requirements of Section 4(f) that this programmatic evaluation will 
provide relief in the preparation of a single evaluation rather than a 
draft and a final, the elimination of certain internal FHWA reviews, 
and the elimination of project-by-project review by the DOI and the 
USDA, and the HUD, all of which are now required for an individual 
Section 4(f) evaluation.

Section-by-Section Analysis

    Revisions were made to several sections of the programmatic 
evaluation based upon either suggestions or comments received. The 
substantive changes not discussed above are considered in this Section-
by-Section Analysis.

Preamble

    In response to comments, the Preamble has been revised to improve 
its consistency with the main body of the programmatic evaluation and 
to respond to the comments received.

Examples

    Several comments were received on the examples provided in the 
draft to illustrate application and implementation of the programmatic 
evaluation. These examples have been rewritten to provide further 
clarity on the use of the programmatic evaluation.
    The TXDOT commented on the example of a renovated historic railroad 
station with the opinion that such renovation, if completed in 
compliance with the Secretary of Interior's Standards and Guidelines, 
should result in a ``no adverse effect'' determination, and thus, no 
4(f) analysis would be required.
    In specific instances, where the purpose of a project was to 
improve an existing transportation facility, the observation of the 
TXDOT would be correct (as provided in 23 CFR 771.135(f)). However, for 
situations not covered by 23 CFR 771.135(f), the FHWA's determination 
of ``no adverse effect,'' as defined by the regulations implementing 
the NHPA, and its subsequent concurrence by the SHPO, would not 
necessarily eliminate the need for a Section 4(f) evaluation. The 
programmatic evaluation provides additional flexibility in addressing 
adverse impacts and Section 106 ``adverse effects'' to historic 
property, where, notwithstanding these impacts, there results an 
overall enhancement of the Section 4(f) property. In the example cited 
above, if the Applicant or the FHWA developed plans to renovate the 
historic railroad station in such a way that the functions and values 
of the station were enhanced yet the design still did not meet the 
Secretary of Interior's Standards and Guidelines (e.g., due to changes 
necessary to comply with the Americans with Disabilities Act), the 
project might still qualify for this programmatic evaluation. The 
example has been rewritten for clarity.
    The MDSHA commented on the example where a Section 106 adverse 
effect determination was rendered; that it was not clear how the 
programmatic evaluation could be applied as the official with 
jurisdiction would be contradicting itself by agreeing that the action 
had a beneficial effect.
    This result would depend upon the enhancement and mitigation 
provided and, in the end, how the officials with jurisdiction view the 
results of that mitigation and enhancement. The FHWA may determine that 
a project has an adverse effect as defined in the Section 106 
regulation on a particular function or value of a Section 4(f) 
property, but for the programmatic evaluation to apply there cannot be 
a ``substantial diminishment'' of the activities, features, and 
attributes that qualify the property for Section 4(f) protection. Not 
every adverse effect rises to the level of substantial diminishment. 
For instance, the removal or moving of one contributing component of a 
historic district may result in an improvement to the access or 
continuity of the overall property. An example would be the creation of 
a pedestrian promenade within the historic district that recreates a 
lost element of the district and improves its economic vitality. 
Additionally, the Section 106 process does not consider the future do-
nothing alternative, yet within this programmatic evaluation the future 
do-nothing is considered when determining net benefit. Therefore, the 
SHPO, without conflict, may concur with an adverse effect determination 
under Section 106, but may agree that the proposed project has a net 
benefit and will not result in substantial diminishment of the property 
under this programmatic evaluation.
    When the FHWA utilizes this programmatic evaluation, documentation 
should be requested from the official(s) with jurisdiction that a net 
benefit will result from implementation of the project and that there 
is no substantial diminishment of protected activities, features or 
attributes of the protected property. This agreement may be 
incorporated into the Section 106 Agreement or other correspondence 
related to the Section 106 consultation process where the Section 4(f) 
protected property is historic, however, it should be clear that the 
Section 4(f) related request is separate and distinct from Section 106 
consultation. If a historic property also meets other Section 4(f) 
criteria (i.e., historic park) and there are multiple officials with 
jurisdiction, they also have a role in determining net benefit.
    In response to the comments received concerning needed guidance and 
in recognition of the need to further clarify the intended use of this 
programmatic evaluation, the examples from the draft were rewritten and 
new examples were added.

Introduction

    Referring to the last sentence of the Introduction, the NPS 
commented that the listing of these few programs in the proposed 
programmatic evaluation might lead to the incorrect interpretation that 
the list is all-inclusive rather than a sampling.
    Not to mislead any intending user of the programmatic evaluation, 
the partial listing has been removed and the portion of the all-
inclusive discussion stating, ``any other applicable Federal 
environmental requirements'' was retained.

Applicability

    The WIDOT commented that the proposed programmatic evaluation is 
limited in its scope and will apply only to a small subset of projects.
    Initially, utilization of the programmatic evaluation may be 
limited, but over time it is anticipated that it will have increased 
use as Applicants, the official(s) with jurisdiction, and the FHWA 
learn how to incorporate actions beneficial to Section 4(f) properties 
into transportation projects and realize the reduction in regulatory 
and internal review times that will result from the application of this 
programmatic evaluation.
    The TXDOT and others requested clarification of language found in

[[Page 20625]]

Applicability, Item Numbers 4 and 5, which contain discussions of the 
roles of ``all parties'' and ``other appropriate parties.'' It was 
suggested that this be clarified to avoid the appearance of 
subjectively defining these categories on a case-by-case basis and 
recommend referencing Section 106 language for ``consulting parties.''
    The concern expressed in this comment is recognized and the 
recommendation has been adopted in part. The language has been reworded 
to eliminate ``other appropriate parties.'' This change respects the 
distinction between Section 4(f) and 36 CFR part 800.
    The NPS commented that the success of existing ``minor 
involvement'' programmatic Section 4(f) evaluations has been due to the 
following factors, (1) they are restricted to improvements on 
essentially the existing alignment, (2) the maximum acreage limitations 
are defined, and (3) they do not apply to projects for which an EIS is 
prepared.
    The essence of this programmatic evaluation is distinct from the 
existing ``minor uses'' programmatic evaluations in that its 
application is dependent on a resulting positive outcome instead of a 
minor use. For this reason its application is appropriate and allowable 
in conjunction with both existing and new alignments. The maximum-
acreage-allowable criterion was specified in the programmatic 
evaluation for minor uses of parks, recreation areas and wildlife and 
waterfowl refuges to assist in defining minor use in spatial terms. The 
amount of property used is not an appropriate factor in determining the 
net benefit and may inappropriately limit application of this 
evaluation in some cases. Therefore, the application of this 
programmatic will remain the same so as not to reduce its potential 
effectiveness and application.
    Since this programmatic evaluation can provide the impetus 
necessary to develop creative measures of avoidance, minimization, and 
enhancement for impacts to protected Section 4(f) properties, it is 
appropriate for use with all environmental class of actions, including 
EISs, in which the applicability criteria is satisfied.
    The NPS and DOI noted that the programmatic evaluation does not 
clearly define the role of agencies holding a contractual or real 
estate interest in the subject property.
    We do not believe it is necessary to specify a criterion that 
singles out the NPS or any other agency in determining applicability of 
the programmatic evaluation. Such an encumbrance would not be affected 
by FHWA's Section 4(f) determination. Where the NPS or another agency 
has the ``last word'', under another statute, that responsibility 
remains intact. A sentence was added to the final programmatic 
evaluation requiring coordination with the appropriate agency, where 
such encumbrances exist, to clarify the process.
    For Section 4(f) properties, other than privately owned historic 
resources, the FHWA and the Applicant shall pursue with due diligence, 
during early stages of project development, determination of whether or 
not the property in question received a LWCFA grant. If the Applicant 
or the FHWA have concerns about whether a park area might have received 
a LWCF grant they should contact one of the National Park Service field 
offices or State Agency, as listed in the ``Contact List'' on the 
following Web site: http://www.nps.gov/ncrc/programs/lwcf/protect.html. 
Administrators have databases of grant-assisted sites that will help 
them to determine whether Fund protections apply; also some States have 
their own grant programs that afford similar protection. Additional 
information and addresses for National Park Service Offices and State 
Liaison Officers for the Land and Water Conservation Fund can be found 
at the following Web site: http://www.nps.gov/ncrc/programs/lwcf/protect.html.
    The NEPA documentation, project file or Section 4(f) documentation 
shall include evidence of the determination.
    The DOI suggested that ``National Historic Landmarks'' should be 
explicitly identified as National Register eligible property and that 
additional stipulations to address situations that involve National 
Natural Landmarks be added.
    Since there is no distinction between National Historic Landmarks 
and other National Register eligible properties where Section 4(f) is 
concerned, the draft language is retained. Also, the programmatic 
evaluation would apply to those National Natural Landmarks that met the 
statutory definition of a Section 4(f) protected property.
    The NPS also expressed concern that the FHWA will have the ``sole 
responsibility'' for determining whether a public park area will 
receive a net benefit. The programmatic evaluation requires the FHWA to 
reach agreement with the officials with jurisdiction; therefore, FHWA 
will never have the ``sole responsibility'' for determining net 
benefit.
    As stated above, the language in the final programmatic evaluation 
addresses the concerns of the NPS. If agreement is not reached among 
the FHWA, the Applicant and official(s) with jurisdiction, then the 
programmatic evaluation cannot be used. If, for example, the NPS 
requires full replacement of federally encumbered property pursuant to 
LWCFA, then that obligation will continue to require at least full 
replacement of the impacted land as determined under that statute 
whether or not there is a net benefit finding. This holds true for any 
necessary provision, whether Federal or State, that relates to the 
impacts of a Section 4(f) property. This is why early consultation and 
input from all appropriate official(s) with jurisdiction is necessary 
and required.
    The MDSHA commented on an apparent discrepancy between one of the 
examples and the Applicability section. The MDSHA notes that the 
Applicability section states that the programmatic evaluation may be 
applied if, among other things, the project does not require the 
demolition or major alteration of the characteristics that qualify the 
property for the NRHP. Yet the example of the reconstructed, 
deteriorated historic feature was deemed appropriate, even given the 
adverse effect determination.
    Changes have been made to the Applicability section to address this 
concern. Additionally, the example has been rewritten for clarity. 
There is no discrepancy as the example is for a reconstruction of a 
contributing element, which the SHPO, as the official with 
jurisdiction, deems to be a net benefit to the property when compared 
to the do-nothing alternative, which leaves the wall in a deteriorated 
condition. Even though the FHWA could determine and the SHPO concur 
that the removal and reconstruction of the wall would be an adverse 
effect under Section 106, the SHPO or THPO could find that the project 
results in an overall benefit. The programmatic evaluation allows for 
impacts of some of the functions and/or values of the property as long 
as there is a collective improvement and there is no substantial 
diminishment to those functions and values that originally qualified 
the property for protection.
    Relating this back to the example at hand, even though the wall is 
considered an important function or value in determining Section 106 
significance of the historic property, the reconstruction of the wall 
is neither considered a substantial diminishment nor a major alteration 
but rather an improvement over its existing condition, the anticipated 
condition of the future no-build and the condition of the historic site 
itself, thereby qualifying as a net benefit.

[[Page 20626]]

    The MDSHA commented on Applicability, Item Number 4, and identified 
a perceived duplication of Section 106 and Section 4(f) efforts. The 
MDSHA asked whether an adverse effect on an historic property is 
obviated by a net benefit to the resource such that, there will not be 
a need for a Section 106 MOA. The CALTRANS added that the SHPO's or 
THPO's written determination of no adverse effect under Section 106 
should suffice as evidence of written agreement under Applicability, 
Item Number 5 to eliminate the need for additional efforts on the part 
of the SHPO or THPO.
    Where required by 36 CFR part 800, an MOA or Programmatic Agreement 
would be a prerequisite for Section 4(f) approval under this 
programmatic evaluation similar to the Final Nationwide Section 4(f) 
Evaluation and Approval for Federally-Aided Highway Projects with Minor 
Involvements with Historic Sites and the Programmatic Section 4(f) 
Evaluation and Approval for FHWA Projects that Necessitate the Use of 
Historic Bridges. The conditions and measures to achieve a net benefit 
may be established in the MOA. However, the MOA, or any additional or 
separate documentation, must clearly record that agreement has been 
reached among the officials with jurisdiction, the FHWA and the 
Applicant and all appropriate documentation must be retained for the 
project record consistent with NEPA project documentation retention 
practices and policies.
    In summation, any written agreement developed as part of the 
Section 106 process can suffice for the Applicability criteria of this 
programmatic evaluation if such agreements (typically MOAs) include an 
agreement by the officials with jurisdiction that the project results 
in a net benefit to a protected Section 4(f) property. However, all the 
officials with jurisdiction may not want to be party to a Section 106 
agreement and other Section 106 parties not necessarily the ``officials 
with jurisdiction.''
    Regarding Applicability, Item Number 4, the AHC commented that 
``such measures'' are ``vague and weak'' and recommended that this be a 
stronger, more specific statement.
    The language in Applicability, Item Number 4 is consistent with 
existing programmatic evaluations and is retained with minor editorial 
changes in the final version. The language allows for flexibility that 
makes the programmatic evaluation as viable a procedural option as 
possible while being as responsive to the expert opinions of the 
official(s) with jurisdiction and the varied qualities of the 
properties they manage.
    The NYSDOT commented on the ``substantial diminishment'' 
requirement related to determining ``net benefit'' in the Applicability 
section. It suggested that the requirement is contrary to the concept 
of ``net benefit'', weakens the concept and narrows the opportunity to 
effectively benefit the resource.
    Programmatic evaluations by their nature are limited to projects 
that meet a specific set of facts and applicability requirements. A 
project that will result in a substantial diminishment of any of the 
functions or values that originally qualified the property for Section 
4(f) protection should be evaluated using an individual evaluation. The 
wording of this programmatic evaluation is designed to ensure that a 
net benefit is achieved without substantial diminishment of the 
functions or values (features or attributes) that make the property 
eligible for Section 4(f) protection. Still, there is flexibility in 
determining what function or values are keys to the properties' 
eligibility for protection and what constitutes a substantial 
diminishment of those functions and values.

Alternatives

    The AHC commented that it is difficult to discern how the 
programmatic evaluation helps the FHWA when it comes to its avoidance 
alternatives analysis and the PennDOT recognized that the programmatic 
evaluation limits the alternatives that must be analyzed and 
documented.
    The PennDOT is correct; the avoidance alternatives that must be 
considered are all-inclusive. This approach is consistent with the 
existing programmatic evaluations.
    The DOI suggested that the ``Do Nothing Alternative'' be replaced 
with the term ``No Action Alternative,'' in accordance with NEPA 
guidance.
    To avoid confusion, the term ``Do Nothing Alternative'' will be 
retained, as it is consistent with the other programmatic evaluations.
    The PennDOT recommended that the ``qualitative importance or 
value'' of each Section 4(f) resource should be considered in 
determining whether or not an avoidance alternative is feasible and 
prudent. It further recommended that for historic properties, the 
condition and ownership should be considered as well.
    The programmatic addresses those situations where the 
transportation use results in an overall enhancement of the property as 
agreed to by the official(s) with jurisdiction, the FHWA and the 
Applicant. The ability to benefit the property must be factored into 
the feasible and prudent determination. The consideration of the 
avoidance alternative comes from the Section 4(f) statutory 
requirements, which have not changed. The Section 4(f) legislation 
addresses historic properties regardless of ownership of the property.

Findings

    The DOI recommended revising the first sentence to indicate that to 
apply the programmatic evaluation to a project, the required no-action 
and avoidance alternatives must be found not feasible and prudent 
through a written determination.
    The wording has been changed to reflect the comment.
    The DOI suggested inserting the phrase ``jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat,'' 
before the phrase ``substantial damage to wetlands''. The suggested 
language has been incorporated.
    The NYSDOT commented on the proposed language, ``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 
(the avoidance) alternative is not feasible and prudent.'' It was 
suggested that this approach would seem more valid in the context of a 
full 4(f) evaluation where there is a net negative effect to a historic 
property, than in a programmatic evaluation context where the ``net'' 
effect is positive.
    This language is consistent with existing Section 4(f) 
implementation policy and has been incorporated in essence. The first 
condition of Section 4(f) use is the determination that no feasible and 
prudent avoidance alternatives exist. The programmatic evaluation must 
include this determination in order to facilitate compliance with the 
statute and regulations. This programmatic evaluation identifies the 
variables that must be considered when making the determination of 
feasible and prudent. Application of this programmatic evaluation is 
optional and an individual evaluation may be prepared at the discretion 
of the Administration in those cases where it is appropriate.
    The AHC asked about how the evidence of no feasible and prudent 
alternative will be collected and distributed.
    Appropriate evidence that no feasible and prudent alternative to 
the use of Section 4(f) property exists must be a part of the FHWA's 
administrative record for the project. This supporting

[[Page 20627]]

information and determination will be documented in the appropriate 
NEPA document or project record consistent with current Section 4(f) 
policy, guidance and the requirements of this programmatic evaluation.
    The AHC also asked about what would constitute a ``substantial 
increase in cost'' and suggested that we include an approximate figure 
or at least a percentage.
    The FHWA, in consultation with the Applicant, will determine what 
is considered a substantial increase. The language is identical to that 
used in previous programmatic evaluations.
    The AHC commented that Findings 2(e) seem to be intended to play 
one resource improvement against another's adverse effect.
    The statement found in Findings 2(e) is not intended to play one 
property against another. The purpose of the statement is to give 
appropriate consideration and weight to the beneficial measures of the 
project when determining whether an alternative is prudent and 
feasible.
    In regard to item number 2(e), the NPS questioned whether ``a 
missed opportunity'' to benefit a Section 4(f) property has any 
relevance in determining whether or not an alternative is feasible and 
prudent.
    Section 4(f) established a two-fold emphasis for the Secretary of 
Transportation: to protect and to enhance significant resources 
identified for special consideration. To date, programmatic evaluations 
have focused on projects with minor impacts to these protected 
properties. This programmatic evaluation is designed to allow the FHWA, 
the Applicant and official(s) with jurisdiction over the Section 4(f) 
properties, to look for opportunities where transportation actions can 
enhance Section 4(f) properties, even where there is a use of some 
property. Because a net benefit on a property can only be determined 
when all parties agree, the programmatic evaluation will only be used 
when it is deemed appropriate and in the best interests of the 
protected property. To ensure that 2(e) is not abused or equated to a 
low bar, we included language to clarify that for a project to qualify 
for 2(e) there must be a substantial missed opportunity to benefit a 
Section 4(f) property.

Mitigation and Measures To Minimize Harm

    Several commenters indicated a confusion regarding the wording of 
this section and offered suggestions. The principal reason is the 
combination of ``Measures to Minimize Harm'' and ``Mitigation 
Measures.'' When put together, commenters read it as ``Measures to 
Minimize Harm and Measures to Minimize Mitigation''. Obviously this is 
not the intent; however, to rectify this misunderstanding the language 
has been changed to read: ``Mitigation and Measures to Minimize Harm.'' 
Although, measures to minimize harm are considered mitigation, this 
language is consistent with the Section 4(f) statute.

Coordination

    The NPS recommended that the programmatic evaluation require that 
all projects be coordinated with the appropriate DOI bureaus.
    As noted earlier, for those projects where an agency or bureau of 
DOI is an official with jurisdiction, or where the LWCFA applies, 
coordination will be necessary as a procedure in meeting the 
applicability requirements and approval of this programmatic 
evaluation.
    Another comment questioned the statement regarding the need for the 
FHWA to coordinate with the United States Coast Guard (USCG) before 
applying the programmatic evaluation to projects requiring a Section 9 
Bridge permit.
    When the proposed programmatic evaluation was issued, the USCG was 
still a part of the USDOT and therefore it had Section 4(f) 
responsibilities. Since that time, the USCG has been relocated to the 
U.S. Department of Homeland Security, eliminating its Section 4(f) 
responsibility. However, the USCG still has responsibility related to 
issuance of Section 9 Bridge permits. Wording has been changed to 
remove coordination with the USCG relative to Section 4(f) compliance.
    The WIDOT noted that the constructive consultation of 
transportation officials, the officials with jurisdiction and resource 
agency staff is encouraged.
    Consultation is not only encouraged, it is required. For this 
programmatic evaluation to be successful, good coordination and 
consultation are imperative.

Public Involvement

    There were no substantive comments regarding this section and no 
changes have been made.

Approval Procedure

    The AHC asked, relative to the last sentence of Item Number 6, if 
the Advisory Council on Historic Preservation agreed to review all 
programmatic evaluations.
    The last sentence in Item Number 6 of the Approval Procedures in 
the draft programmatic should have been a separate paragraph. The 
purpose of the statement in the draft was to indicate that the ACHP and 
other agencies had been given the opportunity to review and comment on 
the draft. Furthermore, the FHWA consulted with the ACHP, the DOI and 
the NPS prior to finalizing the programmatic evaluation. To avoid 
confusion, this statement has been removed from the final programmatic 
evaluation.

Examples of Intended Use

    One example of a net benefit to a historic property would be the 
reconstruction of a deteriorated or lost historic feature (such as a 
rock wall or auxiliary building) where mitigation related to Section 
106 consultation includes the reconstruction of the feature in a 
slightly different location because of the design requirements of a 
needed improvement to the adjacent transportation facility. 
Consultation pursuant to Section 106 of the National Historic 
Preservation Act (16 U.S.C. 470f) would likely result in an ``adverse 
effect'' determination. However, the SHPO, the FHWA, and the Applicant 
all agree that the reconstruction would enhance those qualities for 
which the property was determined eligible, even with the removal and 
replacement of the historically associated feature. In this case, the 
existing FHWA Final Nationwide Section 4(f) Evaluation and Approval for 
Federally-Aided Highway Projects with Minor Involvements with Historic 
Sites would not be applicable, but if SHPO, as the official with 
jurisdiction, agrees that the impacts do not reach a level of 
substantial diminishment, the FHWA may determine that this programmatic 
evaluation would be applicable if the evaluation finds that the use of 
the property is prudent.
    A second example involves a partial or even total relocation of a 
Section 4(f) property (such as a 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 minor use programmatic 
could not be used because the take of land would exceed the limitation 
included in it and would impair the use of the remaining Section 4(f) 
land. Again, this programmatic evaluation would be applicable if the 
officials with jurisdiction agree that the partial (or total) 
relocation would be a net benefit to the park and that the relocation 
does not result in the substantial diminishment of the activities, 
feature or attributes for which

[[Page 20628]]

the park is protected under Section 4(f). For instance, this 
programmatic evaluation can apply where the officials with jurisdiction 
identify a net benefit due to existing inadequate or unsafe access 
conditions to a park which presently minimizes the use of the park and 
the partial relocation can provide safe access; or in a situation where 
a park has minimal public use due to changes in adjacent land use and 
where the officials with jurisdiction agree that the total relocation 
will be of greater park or recreational value to the community.
    A final example is the rehabilitation of an historic railroad 
station to maintain its major historic elements and to permit its 
continued use as a historic transportation facility. In some cases, 
such rehabilitation, even with considerable sensitivity to the historic 
character of the resource, cannot be accomplished without a Section 106 
adverse effect determination, and neither the regulatory provision at 
23 CFR 771.135(f) related to historic transportation facilities nor the 
historic site programmatic could be used. 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 SHPO, 
as the official with jurisdiction, may concur with the FHWA 
determination of ``adverse effect,'' but may also recognize the net 
benefits of the restoration of the station and the assurance of its 
continued use may greatly outweigh the adverse effect, i.e., not 
substantially diminish the qualities for which the property was 
determined eligible.
    There will be situations when this programmatic evaluation would 
not apply. For example, the owner of an individually eligible 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) 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. Although having the record of the demolished building is 
an improvement over not having such a record, it is not a net benefit 
to the resource, as the resource will no longer exist. Therefore, this 
programmatic evaluation would not apply because it requires that there 
be a resource to which a net benefit would result. In this case, an 
individual Section 4(f) evaluation would be needed. On the other hand, 
if the same abandoned historic building (contributing component) lies 
within a large commercial historic district, where the officials with 
jurisdiction (i.e., the SHPO) concur with an ``adverse effect'' 
determination pursuant to Section 106 consultation, but determine that 
the removal of the building with appropriate mitigation will have a net 
benefit to the historic district as the use of the resource (historic 
district) by the transportation project will improve access or parking 
which will likely improve the economic viability of the majority of the 
historic district, thus determining that the use will not rise to the 
level of ``substantial diminishment'' of the qualities of the resource. 
In such a situation, this programmatic evaluation might be applied.
    The FHWA recognizes and appreciates the effort of all parties who 
provided comments for consideration in the development and finalization 
of this programmatic evaluation.

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

    Issued on: April 13, 2005.
Mary E. Peters,
Federal Highway Administrator.

    The text of the FHWA Programmatic Section 4(f) Evaluation and 
Approval for Transportation Projects That Have a Net Benefit to a 
Section 4(f) Property is as follows:

U.S. Department of Transportation
Federal Highway Administration (FHWA)
FINAL

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 certain federally assisted 
transportation improvement projects on existing or new alignments that 
will use property of a Section 4(f) park, recreation area, wildlife or 
waterfowl refuge, or historic property, which in the view of the 
Administration and official(s) with jurisdiction over the Section 4(f) 
property, the use of the Section 4(f) property will result in a net 
benefit to the Section 4(f) property. Definitions:
    ``Administration'' refers to the Federal Highway Division 
Administrator or Division Engineer (as appropriate).
    ``Applicant'' refers to a State Highway Agency or State Department 
of Transportation, local governmental agency acting through the State 
Highway Agency or State Department of Transportation.
    A ``net benefit'' is achieved when the transportation use, the 
measures to minimize harm and the mitigation incorporated into the 
project results in an overall enhancement of the Section 4(f) property 
when compared to both the future do-nothing or avoidance alternatives 
and the present condition of the Section 4(f) property, considering the 
activities, features and attributes that qualify the property for 
Section 4(f) protection. A project does not achieve a ``net benefit'' 
if it will result in a substantial diminishment of the function or 
value that made the property eligible for Section 4(f) protection.
    ``Official(s) with jurisdiction'' over Section 4(f) property 
(typically) include: for a park, the Federal, State or local park 
authorities or agencies that own and/or manage the park; for a refuge, 
the Federal, State or local wildlife or waterfowl refuge owners and 
managers; and for historic sites, the State Historic Preservation 
Officer (SHPO) or Tribal Historic Preservation Officer (THPO), 
whichever has jurisdiction under Section 106 of the National Historic 
Preservation Act (16 U.S.C. 470f).

Applicability

    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 and administrative record. This programmatic evaluation 
will not change any existing procedures for NEPA compliance, public 
involvement, or any other applicable Federal environmental requirement.
    This programmatic evaluation satisfies the requirements of Section 
4(f) for projects meeting the applicability criteria listed below. An 
individual Section 4(f) evaluation will not need to be prepared for 
such projects:
    1. The proposed transportation project uses a Section 4(f) park, 
recreation area, wildlife or waterfowl refuge, or historic site.
    2. The proposed project includes all appropriate measures to 
minimize harm and subsequent mitigation necessary to preserve and 
enhance those features and values of the property that originally 
qualified the property for Section 4(f) protection.
    3. For historic properties, the project does not require the major 
alteration of

[[Page 20629]]

the characteristics that qualify the property for the National Register 
of Historic Places (NRHP) such that the property would no longer retain 
sufficient integrity to be considered eligible for listing. For 
archeological properties, the project does not require the disturbance 
or removal of the archaeological resources that have been determined 
important for preservation in-place rather than for the information 
that can be obtained through data recovery. The determination of a 
major alteration or the importance to preserve in-place will be based 
on consultation consistent with 36 CFR part 800.
    4. For historic properties, consistent with 36 CFR part 800, there 
must be agreement reached amongst the SHPO and/or THPO, as appropriate, 
the FHWA and the Applicant on measures to minimize harm when there is a 
use of Section 4(f) property. Such measures must be incorporated into 
the project.
    5. The official(s) with jurisdiction over the Section 4(f) property 
agree in writing with the assessment of the impacts; the proposed 
measures to minimize harm; and the mitigation necessary to preserve, 
rehabilitate and enhance those features and values of the Section 4(f) 
property; and that such measures will result in a net benefit to the 
Section 4(f) property.
    6. The Administration determines that the project facts match those 
set forth in the Applicability, Alternatives, Findings, Mitigation and 
Measures to Minimize Harm, Coordination, and Public Involvement 
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 are no feasible and prudent alternatives 
to the use of Section 4(f) property, the programmatic evaluation 
analysis must address alternatives that avoid the Section 4(f) 
property. The following alternatives avoid the use of the Section 4(f) 
property:
    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 utilized on a project there 
must be a finding, given the present condition of the Section 4(f) 
property, that the do-nothing and avoidance alternatives described in 
the Alternatives section above are not feasible and prudent. The 
findings (1, 2, and 3. below) must be supported by the circumstances, 
studies, consultations, and other relevant information and included in 
the administrative record for the project. This supporting information 
and determination will be documented in the appropriate NEPA document 
and/or project record consistent with current Section 4(f) policy and 
guidance.
    To support the finding, adverse factors associated with the no-
build and avoidance alternatives, such as environmental impacts, safety 
and geometric problems, decreased transportation service, increased 
costs, and any other factors may be considered collectively. One or an 
accumulation of these kinds of factors must be of extraordinary 
magnitude when compared to the proposed use of the Section 4(f) 
property to determine that an alternative is not feasible and prudent. 
The net impact of the do-nothing or build alternatives must also 
consider the function and value of the Section 4(f) property before and 
after project implementation as well as the physical and/or functional 
relationship of the Section 4(f) property 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 as the 
NEPA purpose and need, which necessitated the proposed project.
    2. Improve the transportation 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) property 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 if implementing 
such measures would result in any of the following:
    (a) Substantial adverse community impacts to adjacent homes, 
businesses or other improved properties; or
    (b) Substantially increased transportation facility or structure 
cost; or
    (c) Unique engineering, traffic, maintenance or safety problems; or
    (d) Substantial adverse social, economic or environmental impacts; 
or
    (e) A substantial missed opportunity to benefit a Section 4(f) 
property; or
    (f) Identified transportation needs not being met; and
    (g) Impacts, costs or problems would be truly unusual, unique or of 
extraordinary magnitude when compared with the proposed use of Section 
4(f) property after taking into account measures to minimize harm and 
mitigate for adverse uses, and enhance the functions and value of the 
Section 4(f) property.
    Flexibility in the use of applicable design standards is encouraged 
during the analysis of these feasible and prudent alternatives.
    3. Build a new facility at a new location without a use of the 
Section 4(f) property.
    It is not feasible and prudent to avoid Section 4(f) property by 
constructing at a new location if:
    (a) The new location would not address or correct the problems 
cited as the NEPA purpose and need, which necessitated the proposed 
project; or
    (b) The 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, 
jeopardize the continued existence of any endangered or threatened 
species or resulting in the destruction or adverse modification of 
their designated critical habitat, substantial damage to wetlands or 
other sensitive natural areas, or greater impacts to other Section 4(f) 
properties); or
    (c) The 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); and
    (d) Such 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 harm, mitigation for adverse use, and the 
enhancement of the Section 4(f) property's functions and value.

[[Page 20630]]

    Flexibility in the use of applicable design standards is encouraged 
during the analysis of feasible and prudent alternatives.

Mitigation and Measures To Minimize Harm

    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, includes appropriate mitigation measures, and that the 
official(s) with jurisdiction agree in writing.

Coordination

    In early stages of project development, each project will require 
coordination with the Federal, State, and/or local agency official(s) 
with jurisdiction over the Section 4(f) property. For non-Federal 
Section 4(f) properties, i.e., State or local properties, the 
official(s) 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 report required under this programmatic 
evaluation shall be offered to the official(s) with jurisdiction over 
the Section 4(f) property, to other interested parties as part of the 
normal NEPA project documentation distribution practices and policies 
or upon request.

Public Involvement

    The project shall include 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 meetings or hearings are held, information on 
the proposed use of the Section 4(f) property shall be communicated at 
the public meeting(s) or hearing(s).

Approval Procedure

    This programmatic evaluation 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 the programmatic evaluation 
(which conclude that the alternative recommended is the only feasible 
and prudent alternative) result in a clear net benefit to the Section 
4(f) property;
    4. Determined that the project complies with the Mitigation and 
Measures to Minimize Harm section of this document;
    5. Determined that the coordination and public involvement efforts 
required by 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.

[FR Doc. 05-7812 Filed 4-19-05; 8:45 am]
BILLING CODE 4910-22-P