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Section 4(f)
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Provides protection to the following type of properties: Publicly-owned Parks and Recreation Areas Publicly-owned Wildlife and Waterfowl Refuges Private and publicly-owned Historic Sites
What is Section 4(f)?
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Department of Transportation Act of 1966 United States Code (USC)
49 USC 1653(f) 23 USC 138 49 USC 303 23 USC 138
FHWA Policy Paper (1985, 1989, 2005, 2012) 23 CFR 771.135 (2002) SAFETEA-LU/Section 6009 de minimis (2005) 23 CFR 774 (2008)
Legislative History
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Federal-Aid Highway Act of 1956 Engineering outweighed community values
Threatened parks and recreation areas Use of parkland seen as less destructive 37 Interstate openings in 1964
Interstate Era
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Senator Yarborough (TX) introduced 4(f) provision in DOT Act of 1966 in direct response to a project linking Downtown San Antonio to the airport through a park
A Law is Born
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Section 138 amended to include 4(f) language:
The Secretary shall not approve any project which requires the use of any significant 4(f) property unless:
(1) There is no feasible and prudent alternative to the use of such land, and;
(2) Such program includes all possible planning to minimize harm resulting from such use
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Federal-Aid Highway Act of 1968
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Feasible Constructed with sound engineering
Prudent The evaluation of unusual factors or unique
problems such as cost, environmental, social and economic impacts, or community disruption that reaches extraordinary magnitude
Feasible & Prudent
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Citizens for Overton Park v. Volpe Use of 4(f) property requires that no unique
problems or unusual factors are involved with the alternatives Upholds feasible and prudent
Social, economic, environmental impacts, community disruption, and/or costs resulting from such alternatives have to reach extraordinary magnitudes
Potential or adverse impacts are formally documented as part of NEPA
1971 Supreme Court Verdict
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Congress decided it was time to change the law SAFETEA-LU
Better Consistency Better Decisions
Fast Forward to 2005
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Exempted Interstate System from 4(f) Section 6007
de minimis impacts for parks, recreation areas, wildlife & waterfowl refuges, and historic sites
Section 6009(a) Clarified feasible and prudent
Section 6009(b)
SAFETEA-LU Provisions
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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The Secretary shall not approve any project which requires the use of any significant 4(f) property unless:
(a) It is determined that:
(1) There is no feasible and prudent alternative to the use of such land, and;
(2) Such project includes all possible planning to minimize harm resulting from such use.
(b) de minimis
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Present Day
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In order for the statute to apply to projects, the following conditions must be true:
USDOT funding and/or approval is required Related to transportation Requires the use of land from a 4(f) property No regulatory rules or exceptions apply
23 CFR 774.11 and 774.13
Applying Section 4(f)
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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4(f) only applies to USDOT agencies FHWA, FTA, FRA…
USDOT funds required for 4(f) to apply Projects with federal approvals can trigger 4(f)
NHS, IMS/IJS… ODOT prepares determination and associated
documentation FHWA responsible for determinations, evaluations,
findings, and overall compliance
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Authority & Responsibility
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Role property plays based on recreation needs and/or community values
If available and up-to-date, a management plan helps define significance and major purpose
Property presumed significant unless Official with Jurisdiction (OWJ) concludes otherwise
23 CFR 774 FHWA retains final decision
in determining significance
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Significance
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Approved by recognized OWJ Designed to officially designate
major purpose and/or function FHWA retains final decision on
whether plan articulates activities, functions, and major purpose
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Management Plan
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Federal, state, or local agency that owns or administers a 4(f) property or has been empowered to represent on matters related to a property
Examples include, but not limited to: National Park Service Ohio Department of Natural Resources Park Manager/Director City Manager Parks and Recreation Director School Superintendent County Commissioners/Township Trustees
For Cultural Resources, the State Historic Preservation Officer (SHPO) is the OWJ
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
OWJ Definition
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Land from a 4(f) property is permanently incorporated into a transportation facility
Temporary occupancy of 4(f) property that is adverse to its functions and activities
Constructive use
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Use Definition
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Proximity impacts, without acquisition of land, cause 4(f) property to be substantially impaired
Capability to perform vital functions or attributes are diminished
Value of property in terms of its significance and enjoyment are substantially reduced or lost
Degree of impairment is determined through consultation with OWJ
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Constructive “Use”
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Five Levels of Determination
No Use No incorporation of a 4(f) propertyinto a transportation facility
de minimis“Use,” but because of avoidance, minimization,or mitigation there is no adverse effect on the
attributes, features, or activities of a 4(f) property
Programmatic Evaluation
Minor “Use” of a 4(f) property that meetscriteria established by FHWA
Individual Evaluation
“Use” of a 4(f) property that does not meetProgrammatic Evaluation criteria
No 4(f) No impacts to an existing 4(f) property ORproperty is not subject to 4(f)
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Adjacent properties do not meet criteria
OR 4(f) property is adjacent to the proposed project
area, but will not be impacted Discuss accordingly in environmental document No formal coordination required
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
No 4(f) Determination
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No incorporation of land from a 4(f) property into a transportation facility will occur
Key activities, features and/or attributes of 4(f) property are not diminished
Issued by OES Policy Staff for park, recreation areas, and wildlife/waterfowl refuges
Issued by OES Cultural Resources Section at the end of the Section 106 process
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
No Use Determination
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FHWA identified exceptions to 4(f) approval 23 CFR 774.13
Do not compromise preservation purpose Contact OES if you have a possible exception
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Exceptions
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774.13(a) - Restoration, rehabilitation, or maintenance of transportation facilities listed on or eligible for the NRHP
“No Adverse Effect” to historic qualities 774.13(b) - Archaeological sites listed or eligible for
the NRHP; but not considered important for preservation-in-place
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Exceptions
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774.13(d) - Temporary occupancy of land that does not constitute a “use”
Commonly referred to as “Temporary No Use” Short duration and no change in ownership Minor scope; property changes are minimal No anticipated adverse physical impacts and no
interference with protected activities, features or attributes, on a temporary or permanent basis
Land must be fully restored to a condition at least as good as that which existed prior to construction
OWJ concurrence required
Exceptions
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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774.13(f) - Certain trails, paths, bikeways, and sidewalks, in the following circumstances:
Trail projects funded under the Recreational Trails Program, 23 U.S.C. 206(h)(2)
National Historic Trails and the Continental Divide National Scenic Trail, with the exception of those trail segments that are historic sites
Occupies a transportation right-of-way without limitation to any specific location within that right-of-way, as long as continuity is maintained
Part of the local transportation system and function primarily for transportation
Exceptions
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Project Description Mapping & Photographs Purpose & Need Description of 4(f) property
For Cultural Resources Complete 106 process, with effect determination
For Parks and Recreation Areas Obtain OWJ Concurrence that proposed undertaking
will not affect overall activities, functions, or attributes
Submittals
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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de minimis
No Use No incorporation of a 4(f) propertyinto a transportation facility
de minimis “Use” but because of avoidance, minimization,or mitigation there is no adverse effect on the
attributes or functions of the 4(f) property
Programmatic Evaluation
Minor “Use” of a 4(f) property that meetscriteria established by FHWA
Individual Evaluation
“Use” of a 4(f) property that does not meetProgrammatic Evaluation criteria
No 4(f)No impacts to an existing 4(f) property OR
property is not subject to 4(f)
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Established in SAFETEA-LU Simplifies processing and approval of a
transportation use of a 4(f) property Considers avoidance, minimization, mitigation, or
enhancements to a 4(f) property Applies to any level of NEPA documentation Does not replace Programmatic or Individual
Evaluations OES coordinates de minimis with FHWA
de minimis
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Impact will not adversely affect activities, features, and attributes of the resource
Analysis of avoidance alternatives not required Public notice, review, and comment opportunity is
required if: Property is a park, recreation area, or refuge Include notice in the NEPA document
OWJ concurrence is required
de minimis
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Can apply when a temporary use of property is determined to be adverse
For multiple 4(f) properties: Each property considered separately No project wide consideration Mitigation for each individual property
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
de minimis
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Recreation Concurrence from OWJ Public Involvement
Press Release/Public Notice, at a minimum
Cultural Resources Determination of “No Adverse Effect” or “No Historic
Properties Affected” Concurrence with SHPO
Intent to apply de minimis FHWA has considered views of consulting parties
de minimis Requirements
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Project Description Mapping & Photographs Purpose & Need Description of 4(f) property Discussion of avoidance, mitigation, minimization, or
enhancements Public Involvement Materials Press Release
Only for Parks, Recreation Areas, and Refuges OWJ Concurrence
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
de minimis Submittals
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Programmatic Evaluations
No Use No incorporation of land from a 4(f) propertyinto a transportation facility
de minimis Impact Finding
“Use” but because of avoidance, minimization,or mitigation there is no adverse effect on the
attributes or functions of the 4(f) property
Programmatic Evaluation
Minor “Use” of a 4(f) property that meetscriteria established by FHWA
Individual Evaluation
“Use” of a 4(f) property that does not meetProgrammatic Evaluation criteria
No 4(f) No impacts to an existing 4(f) propertyProperty is not subject to 4(f)
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“…time-saving procedural alternative to preparing Individual 4(f) evaluations…for certain minor uses of a 4(f) property…”
Based on experience with a specific set of conditions that includes project type, degree of use, and evaluation of avoidance alternatives
May only be used if specific conditions are met
Programmatic Evaluations
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Issued by FHWA Independent Walkway and Bikeways Historic Bridges Minor Involvements with Historic Sites Minor Involvements with Parks, Recreation Lands
and Wildlife & Waterfowl Refuges Net Benefits to a Section 4(f) Property
Specifics of each are different Apply each on its own terms
http://www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp
Programmatic Evaluations
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Separate, stand alone document May be submitted concurrently with NEPA
document but often done earlier Avoidance Alternatives Analysis required
Not for Independent Walkway and Bikeways Demonstrates why alternatives that avoid 4(f)
property are not feasible and prudent FHWA has 15 calendar days to object
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Programmatic Evaluations
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Projects with primary purpose of providing bicycle or pedestrian facilities
Can apply as long as the project will not: Impact endangered species habitat Create major impacts or public controversy Create adverse social or economic impacts Displace families and/or businesses
Obtain OWJ Concurrence Avoidance Alternatives Analysis not required
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Independent Walkway & Bikeways
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Can be used when the following criteria is met: The proposed project will impair historic integrity
either by rehabilitation or demolition The proposed project meets specific criteria on
alternatives, findings, and mitigation Agreement among SHPO, FHWA, and ACHP is
reached through Section 106 process A finding of “Adverse Effect”
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Historic Bridges
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Can be used when the following criteria is met: The proposed project will not remove or alter
historic buildings, structures, or objects The proposed project will not disturb or remove
archaeological resources determined important for preservation-in-place
Section 106 finding of either “No Historic Properties Affected" or “No Adverse Effect“
Does not apply to EIS projects Essentially replaced by de minimis
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Minor Involvements w/Historic Sites
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Can be used when the following criteria is met: Proximity impacts on remaining 4(f) property will
not impair features, attributes, or function OWJ concurs with assessment of impacts and
proposed mitigation No objection from appropriate federal agency if
land was encumbered with a federal interest Does not apply to EIS projects Essentially replaced by de minimis
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Minor Involvements w/Parks, Recreation Areasand Wildlife & Waterfowl Refuges
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A transportation use of a park, recreation area, wildlife and waterfowl refuge, or historic site occurs
Assessment of impacts incorporates appropriate measures to minimize harm
Subsequent mitigation incorporated to preserve, rehabilitate and enhance existing features and values that qualified the property for protection
Must obtain OWJ concurrence Applies to all NEPA document levels
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Net Benefit
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Required for the following Programmatics: Historic Bridges Minor Involvements w/Historic Sites Minor Involvements w/Parks, Rec. Areas and
Wildlife & Waterfowl Refuges Net Benefits to a Section 4(f) Property
Analysis demonstrates no feasible and prudent alternative to the “use” of a 4(f) property
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Alternatives Analysis
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Project Description Mapping and Photographs Purpose & Need Description of 4(f) property Impacts Discussion Avoidance Alternatives Analysis Measures to Minimize Harm Summary
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Programmatic Evaluation Submittals
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Individual Evaluation
No Use No incorporation of land from a 4(f) propertyinto a transportation facility
de minimis “Use” but because of avoidance, minimization,or mitigation there is no adverse effect on the
attributes or functions of the 4(f) property
Programmatic Evaluation
Minor “Use” of a 4(f) property that meetscriteria established by FHWA
Individual Evaluation
“Use” of a 4(f) property that does not meetProgrammatic Evaluation criteria
No 4(f) No impacts to an existing 4(f) property orproperty not subject to 4(f)
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Required when conditions of the Programmatic Evaluations are exceeded
Prepared as a stand-alone document Reviewed by other federal agencies Requires FHWA legal sufficiency review
Level 3 & 4 CE, EA, or EIS 4(f) submitted with environmental document
Refer to FHWA Technical Advisory T6640.8A Oct. 30, 1987
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Individual Evaluations
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Project Description Project Mapping & Photographs Purpose & Need 4(f) Property Description Impacts to 4(f) Property Avoidance Alternatives Analysis Measures to Minimize Harm/Mitigation Summary
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Individual Evaluations for CEs
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Stand-alone document
OR Separate section of EA Draft/Final document submittal has same
information as in an EIS Coordination with appropriate agencies
Individual Evaluations for EAs
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Typically: DEIS contains Draft 4(f) evaluation FEIS contains Final 4(f) evaluation ROD contains summary of 4(f) approval
Individual Evaluations for EISs
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Project Description Description of 4(f) Property Impacts to 4(f) Property Avoidance Alternatives Analysis Measures to Minimize Harm Coordination with OWJ Mapping and Photographs Summary Conclusion of no feasible and prudent alternatives is
made in Final, following coordination of draft
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Individual Evaluation & DEIS
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Include all information from Draft, plus: Basis for No Feasible and Prudent Alternatives Basis for conclusion that all possible planning to
minimize harm has been completed Summary of Formal Coordination Copies of formal coordination comments Concluding Statement:
“Based upon the above considerations, there is no feasible and prudent alternative to the use of land from (4[f] property) and the proposed action includes all possible planning to minimize harm to (4[f] property) resulting from such use.”
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Individual Evaluation & FEIS
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OES Review 30 Calendar Days
FHWA Review 30 Calendar Days
14 copies to National Park Service 45 Calendar Days
Two copies to HUD or USDA Only when coordination is required (rare)
Plan for at least 6 months!!!
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Individual 4(f) Approval Process
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4(f) PROPERTY DETERMINATIONNo impacts
Not subject to 4(f) No 4(f)
ProtectedNo incorporation of 4(f) property “No Use”
ProtectedTemporary Occupancy Temporary “No Use”
ProtectedPermanent Incorporation
“No Adverse Effect”“Temporary Adverse Effect”
de minimis
ProtectedMinor “Use” Programmatic Evaluation
ProtectedMajor Adverse “Use” Individual
Determination Quick Guide
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Type of 4(f) PropertiesManaging the Environmental & Project Development Process
Presented by the Ohio Department of Transportation
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4(f) Publicly-owned and open to the public
AND Significant for park or recreation purposes
Constitutes major purpose or function Incidental, secondary, occasional or dispersed park
or recreational activities do not constitute a major purpose
Must be officially designated by OWJ May have multiple OWJ
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Parks & Recreation Areas
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NOT 4(f) Privately-owned
OR Open to a select group and not the entire public
Gated or public housing communities Military personnel and their dependents Students of a public school Students, faculty and alumni of a public college or
university
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Parks & Recreation Areas
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Not defined in 4(f) law or FHWA Regulations FHWA considers the National Wildlife Refuge System
Administration Act as contemporaneous legislation in implementation of 4(f) for refuges
National Wildlife Refuges are 4(f) properties No individual determination of 4(f) status
needed
Wildlife & Waterfowl Refuges
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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For purposes of 4(f), properties that may function as refuges include:
State or Federal Wildlife Management Areas Wildlife Reserves Preserve or Sanctuary Waterfowl Production Areas
Includes wetlands and uplands set aside for refuge purposes, in a form of public ownership
Wildlife & Waterfowl Refuges
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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4(f) Significant publicly-owned property (including waters)
officially designated as refuge by recognized OWJ May have multiple OWJ
Review management plan (if one exists) to determine if major purpose is for:
Conservation, restoration, management of endangered species, protection of habitat, etc.
Recreational activities, including hunting and fishing, are consistent with preservation
Wildlife & Waterfowl Refuges
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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NOT 4(f) Privately-owned land Major purpose is for non-4(f) activities
POINT TO REMEMBER “Open to the public” requirement only applies to
parks and recreation areas Most refuges allow public access, while others do
not, especially during certain times/seasons Public access does not determine 4(f) Review management plan/primary purpose
Wildlife & Waterfowl Refuges
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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4(f) Listed on or eligible for listing on the National Register
of Historic Places (NRHP) Public or Private Ownership
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Historic Sites
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4(f) Listed on or eligible for listing on the NRHP Includes individually eligible or listed properties that
contribute to the eligibility of the district Properties within the bounds of a district are assumed
to contribute, unless stated or determined not to be through 106 consultation
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Historic Districts
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4(f) requirements essentially the same as for any historic site determined eligible under Section 106
While not expressly stated in regulations, the importance and significance of NHLs should be considered in 4(f) analysis of least overall harm pursuant to 23 CFR 774.3(c)(1)(iii)
When an adverse effect finding is determined through the Section 106 process and the Secretary of Interior elects to participate, their representative (typically NPS) is the recognized OWJ
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
National Historic Landmarks
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Consultation with SHPO (OWJ) results in: Rehabilitate Bridge
No Adverse Effect = No Use Adverse Effect = Use
Demolish Bridge Adverse Effect = Use
Donations (Re-Use) Historic Integrity Maintained = No Use
Historic Bridges
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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4(f) Listed on or eligible for listing on the NRHP and
important for preservation in place Includes sites discovered during construction SHPO Consultation
NOT 4(f) Important for data recovery only
SHPO Consultation
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Archaeological Sites
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4(f) Listed on or eligible for the NRHP and important for
preservation in place Consultation w/SHPO
NOT 4(f) As a result of SHPO consultation, it is determined the
project would occupy only a part of the district considered a non-contributing element
OR Only important for data recovery
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Archaeological Districts
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4(f) Applies to portions of public property designated or
identified in an approved management plan for park, recreation, or wildlife & waterfowl refuge purposes, and determined significant
Includes eligible or listed historic sites
NOT 4(f) Park, recreation, or refuge is not the primary purpose
or function No approved plan or plan out-of-date
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Multiple-Use Land Holdings
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Playground defined as the area of school property developed and/or used for public park or recreation purposes:
Baseball Diamonds Soccer Fields Tennis Courts Track & Field Facilities Jungle Gyms/Swing Sets Open Space or Practice Fields
4(f) applies to the “playground” area, not the entire school campus
School Playgrounds
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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4(f) Publicly-owned and open to the public
AND Serves organized or substantial “walk-on” activities
determined significant for recreation Coordination with OWJ determines significance for
recreational purposes May be more than one OWJ Public agency or organization may be authorized
to use after school hours
School Playgrounds
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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NOT 4(f) Serves school activities and functions only
OR Privately-owned and not opened to the public
School Playgrounds
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Consult with OWJ (Superintendent) to determine recreational significance
OES developed OWJ Letters to be used for these type of projects
Section 4(f) Toolkit (OES website) Contact OES for further guidance
Safe Routes to School and 4(f)
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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4(f) Publicly-owned Designated or functions primarily for recreation Part of Approved Management Plan
Review plan during early consultation with OWJ Helps determine primary purpose
NOT 4(f) Primary purpose is for transportation
Regardless if public or private Considered part of local transportation system Not considered significant for recreation
Bikeways
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Improvement to an existing 4(f) property by a Transportation Enhancement Activity (TEA)
“Use” does not occur when purpose is the preservation or enhancement of the activities, features, or attributes that qualified the property for 4(f) protection
Obtain OWJ Concurrence If a TEA permanently incorporates 4(f) property into
a transportation facility, a “use” occurs Exception at 23 CFR 774.13(g)
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Transportation Enhancements
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4(f) Publicly-owned, operated and managed for the
primary purpose of public recreation
NOT 4(f) Privately owned
Even if open to the public
Golf Courses
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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POINTS TO REMEMBER Courses on land owned by public agencies but
managed and operated by private entities may be subject to 4(f) depending on lease agreement
Greens-fees or tee times do not alter 4(f) requirements of public ownership, public access, and recreation significance
Courses that are historic sites are not subject to public ownership and access requirements
Military golf courses not subject to 4(f)
Golf Courses
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Publicly-owned properties of this nature are not considered parks, recreation areas, or refuges
Not subject to 4(f) unless it is an historic site Publicly-owned zoos evaluated case-by-case
Review Management Plan Considered significant for park, recreation area,
or historic site
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Museums, Aquariums and Zoos
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4(f) Open to the public and functions primarily for public
recreation other than an annual fair Applies only to the portion(s) of land significant
for park or recreational purposes
NOT 4(f) Functions primarily for commercial purposes:
Stock Car Races Horse Racing County or State Fairs
Fairgrounds
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Defined as:“A river and the adjacent area within the boundaries of a component of the National Wild & Scenic Rivers System”
Lands in National Wild & Scenic River corridors managed for multiple purposes may be subject to 4(f)
Contingent on manner in which they are managed Four Federal agencies manage WSR corridors:
U.S Forest Service National Park Service (NPS) U.S. Fish and Wildlife Service (USFWS) Bureau of Land Management
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Wild & Scenic Rivers
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WSR corridors can have three designations: Wild Scenic Recreational
When determining 4(f): Review River Designation Review how the river is being used Review Management Plan
WSR designation does not in itself invoke 4(f) in the absence of significant 4(f) attributes and qualities
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Wild & Scenic Rivers
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4(f) Portions of land designated for recreation or other 4(f)
purposes within a WSR Corridor Review Management Plan
NOT 4(f) Rivers under study (unless significant for above) No approved Management Plan Lands within WSR corridor not open to the public Primary purpose related to non-4(f) activities
Wild & Scenic Rivers
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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4(f) Publicly-owned
AND OWJ has designated and determined property to be
significant for park, recreational area, or refuge Must be in a city or county Master Plan Desire or intent to designate is not sufficient
NOT 4(f) Privately owned
Planned 4(f) Properties
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Public easements in perpetuity considered publicly-owned land for the purpose the easement exists
Lease agreements may constitute permanent and proprietary interests
Consult with FHWA For conservation easements, FHWA considers
ownership, significance, and major purpose
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Easements & Lease Agreements
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SECTION 4(f)PROGRAMMATIC AGREEMENT
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
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Ohio was the first State DOT to create an agreement with FHWA specific to 4(f)
October 2001 Applies to all levels of environmental classifications Applies only to federally-funded projects Revised Agreement executed 8/24/2012
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Background
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Processes Non-Individual Section 4(f) Actions Defines responsibilities regarding Documentation,
Public Involvement, Training, and Monitoring. Establishes a process to effectively coordinate with
the OWJ Establishes procedures to expedite project delivery
per Every Day Counts initiatives Ensures regulations are properly met
What it Does for ODOT
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
84
Does not delegate FHWA responsibility for making a final 4(f) Approval
FHWA can grant advanced approval for actions described in the agreement
ODOT’s determination based on conditions of the advanced approval ends the paperwork process, unless objection is received
All documentation available through CE Online System or other electronic means
Public Involvement as it relates to Section 4(f) properties better defined
Highlights
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
85
Establishes processing and documentation of exceptions in accordance with 23 CFR 774.13
Establishes a concurrent review process for de minimis determinations for historic properties
FHWA review time matches timeframe allotted for SHPO review per Section 106 PA 15 calendar days
If no objection received from FHWA upon SHPO concurrence, the determination is considered complete upon notification to FHWA
Highlights
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
86
SECTION 6(F)LAND & WATER CONSERVATION FUND ACT
(LWCF)Managing the Environmental & Project Development Process
Presented by the Ohio Department of Transportation
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Preserve, develop, and assure accessibility to all outdoor recreation resources
Strengthen health and vitality Provide funds for and authorize Federal assistance to
the States in the planning, acquisition, and development of certain land and water areas and facilities
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
LWCF Purpose
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Established by Congress in 1965 Comprised of revenue from offshore oil and gas
leasing, not taxpayer dollars Program divided into two parts:
Grants to State and local governments Federal acquisition of lands, waters, and interests
necessary to achieve the natural, cultural, wildlife, and recreation management objectives of the NPS and other federal land management agencies
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Background
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Over $14.4 billion granted to state and local governments to acquire new lands for recreation
Over 40,000 grants approved Over 3 million acres of lands purchased and
protected for recreation purposes Over 29,000 projects have developed basic
recreation facilities in every state and territory
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Background
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LWCF Act contains strong provisions to protect federal investments and quality of resources
Discourages casual "discards" of park and recreation facilities by ensuring that alterations or "conversions from recreation use" will bear a cost
Assures taxpayers that investments in the "national recreation estate" will not be squandered
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Regulatory Protection
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Section 6(f)(3) No property acquired or developed with LWCF shall be
converted to non-public outdoor recreation uses Such conversion will only be approved if:
In accordance with an existing Statewide Comprehensive Outdoor Recreation Plan (SCORP)
AND Only upon such conditions as deemed necessary
to assure the substitution of other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Regulatory Protection
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Section 6(f)(3) “Anti-conversion" requirement applies to parks and
other sites that received LWCF Regardless if acquisition was for parkland
development or rehabilitation of facilities A small grant for development of a picnic shelter in a
park of hundreds or even thousands of acres provides anti-conversion protection to the entire park site
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
Regulatory Protection
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Coordination with ODNR/NPS required Conversion Report
Detailed Project Description and Impacts Identifies potential replacement property
Requires preliminary approval from ODNR Appraisals for property to be converted and
replacement property Alternatives Considered Environmental Screening Form (ESF) Mapping
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
6(f) Conversion Process
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Approval of any conversion request requires: Evaluation of all practical alternatives Design modifications or other mitigation to
reduce impacts Replacement land of equivalent usefulness and
location Coordination with all relevant agencies has taken
place and approvals received
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
6(f) Conversion Process
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4(f) applies to publicly-owned parks, recreation areas, and wildlife & waterfowl refuges
6(f) applies to properties that received LWCF 6(f) coordination is required with Department of the
Interior (DOI)/NPS In Ohio, ODNR liaisons with NPS
4(f) approval required prior to 6(f) approval
Managing the Environmental & Project Development ProcessPresented by the Ohio Department of Transportation
4(f)/6(f) Relationship
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Recommended