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Appendix B. SAFETEA-LU Section 6009
Implementation Study Plan

SAFETEA- LU SECTION 6009 IMPLEMENTATION STUDY PLAN
MARCH 31, 2008

Prepared for: Office of Project Development and Environmental Review Federal Highway Administration Office of Planning and Environment Federal Transit Administration U.S. Department of Transportation

Prepared by: John A. Volpe National Transportation Systems Center Research and Innovative Technology Administration U.S. Department of Transportation

Table of Contents

1. Introduction

1.1 Purpose of the Evaluation
1.2 Evaluation Approach
1.3 Plan Organization

2. Evaluation of the De Minimis Impact Provision

2.1 Focus: Phase I and Phase II
2.2 Evaluation Approach
2.3 Evaluation Questions
2.4 Research Areas
2.5 Analysis of National Trends and Patterns
2.6 Project Categories for Evaluation
2.7 Conducting the Analysis
2.8 Phase II: Update and Extend Phase I Results

3. Evaluation of Feasible and Prudent Standards

3.1 Focus
3.2 Phase I: Process Evaluation
3.3 Phase II: Implementation Evaluation

4. Evaluation Timeline

EXHIBITS
Exhibit 1. De Minimis Impact Process Requirements
Exhibit 2. Process Timeline for Amending the Section 4(f) Regulation
Exhibit 3. 6009 Implementation Study Preliminary Schedule

APPENDIXES
Appendix A SAFETEA-LU Requirements
Appendix B 49 U.S.C. 303
Appendix C Compilation of Preliminary Data Inventory
Appendix D Draft Interview Guide
Appendix E Sample Selection Strategy

1 Introduction

1.1 Purpose of the Evaluation

The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) Section 6009, Parks, Recreation Areas, Wildlife and Waterfowl Refuges and Historic Sites, requires the U.S. Department of Transportation to study the implementation of and the amendments made by Section 6009 regarding Section 4(f) (see Appendix A). Section 4(f) refers to the original section of the 1966 U.S. Department of Transportation Act, which established requirements for approving transportation projects that will use historic sites or publicly owned parks, recreational areas, and wildlife and waterfowl refuges that meet established criteria (see Appendix B).

The 6009 implementation study will address the implementation of Section 6009 amendments and requirements to evaluate the implementation of both the de minimis and feasible and prudent standards.

Section 4(f) requires that “a special effort be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.” Prior to SAFETEA-LU Section 4(f) law allowed the U.S. Department of Transportation (U.S. DOT) to approve a transportation program or project requiring the use of a Section 4(f) property only if:

1. there is no prudent and feasible alternative to using that land; and
2. the program or project includes all possible planning to minimize harm to the Section 4(f) property resulting from the use.

SAFETEA-LU Section 6009(a) modified existing law to allow a simplified process for approval of projects that have de minimis impacts on Section 4(f) property. De minimis impact, in general terms means that the use of the transportation project will not adversely affect the activities, features and attributes of the Section 4(f) property.

Section 6009(b) required the U.S. DOT to promulgate regulations to clarify the factors to be considered and the standards to be applied in determining the prudence and feasibility of alternatives that avoid uses of Section 4(f) property. FHWA and FTA published a Notice of Proposed Rulemaking on July 27, 2006. The final rule was published on March 12, 2008 and is effective on April 11, 2008.

Section 6009(c) of SAFETEA-LU requires the U.S. DOT to conduct a study and issue a report on the implementation of the new Section 4(f) provisions and requirements. As required by SAFETEA-LU, the Section 6009 implementation study will evaluate:

• “The processes developed under [Section 6009] and the amendments made by this section and the efficiencies that may result;”
• “The post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects conducted” under Section 6009 and its amendments; and
• “The quantity of projects with impacts that are considered de minimis under this section and the amendments made by this section, including information on the location, size, and cost of the projects.” ¹

The primary audiences for the study are the appropriate committees of Congress, the Secretary of the Interior, and the Advisory Council on Historic Preservation. The report will be made available to the public and to State DOTs, transit agencies, Federal and state resource agencies typically engaged with Section 4(f) properties, as well as State Historic Preservation Offices (SHPOs) and Tribal Historic Preservation Offices (THPOs). The study does not intend to serve as a legal audit of compliance.

1.1.1 Phase I and Phase II Evaluations

SAFETEA-LU Section 6009(c) requires the U.S. DOT to issue a report no earlier than August 10, 2008, addressing the first three years of implementation. Section 6009(c) also requires that an update to the report be submitted to Congress no later than March 1, 2010.

Phase I of the study, therefore, will address the first three years of implementation from August 10, 2005 until August 2008. This phase will focus primarily on evaluation of the de minimis impact provision and the progress made in its implementation. There will not be sufficient information available to allow an evaluation of the implementation of the Section 4(f) regulation on the feasible and prudent avoidance alternatives standards by August 2008. As a result, Phase I will document the process used to develop the final rule and discuss how the factors and standards have been clarified.

Phase II will focus on the implementation of the feasible and prudent avoidance alternatives standards through early 2010. Phase II will also update and extend the Phase I evaluation of the de minimis impact provision.

1.2 Evaluation Approach

1.2.1 The De Minimis Impact Provision

Phase I of the evaluation of the implementation of the Section 6009 will document:

• the guidance issued by FHWA and FTA in December 2005 on the de minimis Impact provision;
• changes to the Section 4(f) rule to address the de minimis impact provision;
• major public and agency comments on the proposed rule that pertain to the de minimis impact provision and DOT's response; and,
• other aspects of implementation as appropriate, including training agency staff on the new provision.

The study of the implementation of this provision will rely on both quantitative and qualitative approaches and methods of evaluating implementation and efficiencies.

The study will use a quantitative analysis of project data collected by FHWA and FTA to provide the national statistics (i.e., location, cost, size) required by SAFETEA-LU (see Appendix C for the Preliminary Data Inventory). This analysis will also identify national patterns and trends related to the implementation of the de minimis impact provision for highway and transit projects.

The evaluation will rely on stakeholder interviews and site reviews to estimate the time and cost savings as well as post-construction impacts resulting from the implementation of the de minimis impact provision (see Appendix D for the Draft Interview Guide). A representative sample of projects across the country will be selected for interviews and document reviews. In addition, the evaluation will include site-specific reviews of selected projects that have completed construction. The purpose of these site reviews will be to better understand the post project implementation point of view of participants, the relationships among stakeholders, and the institutional context associated with section 4(f) compliance. These site reviews will be based on preliminary phone interviews, targeted site reviews, and document reviews. See Appendix E for the “Sample Selection Strategy.”

The study will rely on qualitative methods (stakeholder interviews and site reviews) to identify estimated efficiencies and impacts because of the following constraints:

• FHWA and FTA headquarters offices have not and do not routinely track detailed information for individual or programmatic Section 4(f) evaluations and approvals. As a result, it will be difficult to compare projects with de minimis impacts to a baseline measurement of individual and programmatic evaluations.
• Because of the many project variables (project type, location, size, cost; amounts of property acquisition; activities, features and attributes of the 4(f) property; etc.) that affect time and cost efficiencies, it is difficult to compare a group of projects with de minimis impacts to a control group of projects that required an individual 4(f) evaluation and compliance process.
• Because of the many project and 4(f) property variables likely associated with a de minimis impact determination and because the process is new, there is limited data and experience associated with evaluating the post construction mitigation.
• It is difficult to extrapolate state-specific results to the nation. Cost and time efficiencies are affected by distinctive institutional arrangements and, in some cases, pre-existing streamlining agreements.

1.2.2 Feasible and Prudent Avoidance Alternatives Standards

SAFETEA-LU required the U.S. DOT to issue new regulations that would accomplish the following:

• “Clarify the application of the legal standards to a variety of different types of Transportation Programs and projects depending on the circumstances of each case;” and
• “May include, as appropriate, examples to facilitate clear and consistent interpretation by agency decisionmakers.” ²

Phase I of the evaluation of the implementation of the feasible and prudent avoidance alternatives standards will document:

• the rulemaking process through interviews with FHWA and FTA staff
• changes to Section 4(f) rule;
• public and agency comments on the proposed rule and DOT's response
• published Section 4(f) rule; and
• other aspects of implementation as appropriate, including training agency staff on the regulation

Phase II will rely primarily on stakeholder interviews and case studies to determine how the new regulations are impacting the implementation of Section 4(f).

1.3 Study Plan Organization

The main body of the study plan includes:

• The approach for evaluating the implementation of the de minimis impact provision;
• The approach for evaluating the implementation of the feasible and prudent avoidance alternative standards; and
• The evaluation timeline.

In addition, the plan's appendices provide additional information on the following:

• SAFETEA-LU language specifying the Section 6009 amendments and requirements;
• Amended Section 4(f) statute, 49 U.S.C. 303;
• FHWA and FTA's national inventory of projects with de minimis impacts;
• Interview question guide;
• Site review selection strategy.

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2 Evaluation of the De Minimis Impact Provision

2.1 Focus

SAFETEA-LU Section 6009(a) (and 23 CFR 774.17) defines a de minimis impact generally as one that does not adversely affect the features, attributes, or activities qualifying the property for protection under Section 4(f). Section 6009(a) distinguished de minimis impacts for parks, recreation areas, and refuges from historic sites and established two different approval processes.

Section 4(f) historic sites include any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization that are included in, or are eligible for inclusion in, the National Register. The de minimis impact process for historic sites allows the Section 106 process of the National Historic Preservation Act to serve as the Section 4(f) when the result is a finding of no effect or no adverse effect on the historic resource. The Section 106 process requires consultation with appropriate officials, including the official with jurisdiction over the resource.

The de minimis impact process for publicly owned parks, recreation areas, and refuges includes a public involvement requirement. It also requires written concurrence from officials with jurisdiction over the resource that the project will not adversely affect the activities, features, and attributes of the Section 4(f) property.

Note: applicability of Section 4(f) to parks, recreation areas, and wildlife and waterfowl refuges and historic sites is defined in a FHWA guidance document issued March 1, 2005.³

The de minimis impact process for all projects eliminates the requirement for an analysis of feasible and prudent avoidance alternatives; requires minimization of harm with the inclusion of avoidance, minimization, mitigation, and enhancement measures as appropriate in the project; and reduces FHWA and FTA review. Exhibit 1 shows the common points and distinctions for the process used for historic sites and for parks, recreation areas, and refuges. The de minimis impact process is addressed in FHWA/FTA Guidance issued on December 13, 2005.⁴

Exhibit 1. De Minimis Impact Process Requirements

2.2 Evaluation Approach

The overall approach for Phase I involves the following:

1. Defining evaluation questions based on determining expected efficiencies associated with the de minimis impact findings as opposed to the necessity of preparing individual 4(f) evaluations for minor impacts;
2. Evaluating the post-construction impacts and mitigation of the de minimis impact provision;
3. Analyzing FHWA and FTA databases of projects with de minimis impact findings to identify national trends and patterns;
4. Identifying categories of projects for more detailed investigation;
5. Based on these categories, identifying a representative sample of projects for detailed investigation;
6. Conducting the evaluation of these projects through stakeholder telephone interviews and site reviews;
7. Analyzing the findings and writing the final report to Congress; and
8. Designing the details of the Phase II evaluation.

2.3 Evaluation Questions

The intent of the SAFETEA-LU Section 6009(a) provision is to create time and cost savings for transportation projects that have a de minimis impact on a Section 4(f). Some basic evaluation questions are:

• Does the new process generate time or cost savings?
• If so, in what areas of the process do the time and cost savings most often occur?
• What is the approximate magnitude of these cost and time savings?
• Are there any effects, positive or negative, on the design of the transportation projects?
• Are there any unintended consequences of the process?
• Are there any trends or patterns in the use of the process?
• How has implementation worked? What factors appear to contribute to or hinder project success?
• Are there challenges in implementing the de minimis impact provision? Why or why not? If so, what strategies appear to be effective in overcoming challenges?
• How has the de minimis impact process affected the stewardship of Section 4(f) properties?

2.4 Research Areas

In order to answer the above evaluation questions, the study will investigate five research areas: time implications, cost implications, impacts on Section 4(f) properties, impacts on transportation projects, and institutional factors.

2.4.1 Time Implications

The evaluation will explore whether the de minimis impact process affects the time required to approve Section 4(f) projects involving historic sites by, for example:

1. Eliminating the requirement for a feasible and prudent avoidance alternative analysis.
2. Eliminating the need for U.S. Department of Interior (DOI) review (typically a 45-day review).
3. Reducing FHWA/FTA Section 4(f) review in making a finding as opposed to an individual 4(f) evaluation.
4. Eliminating the FHWA/FTA legal sufficiency review.

Similarly, the evaluation will examine whether the de minimis impact process expedites the Section 4(f) approval process for parks, recreation areas, and refuges by, for example:

1. Eliminating the requirement for the development and analysis of avoidance alternatives analysis.
2. Requiring written concurrence by officials with jurisdiction over the Section 4(f) property.
3. Requiring public notice and public comment period.
4. Eliminating the need for DOI review (typically a 45-day review).
5. Reducing FHWA/FTA Section 4(f) review in making a finding as opposed to reviewing a Section 4(f) evaluation.
6. Eliminating the FHWA/FTA legal sufficiency review.

2.4.2 Cost Implications

The evaluation will examine whether the de minimis impact process affects the cost of the Section 4(f) compliance process for historic sites by, for example:

1. Eliminating the requirement for the development and analysis of alternatives analysis (staff hours and contractor costs).
2. Relying on the Section 106 consultation process.
3. Eliminating staff labor associated with obtaining DOI review.
4. Reducing FHWA/FTA staff labor associated with Section 4(f) review to make a finding as opposed to reviewing a Section 4(f) evaluation.
5. Eliminating staff labor associated with the FHWA/FTA legal sufficiency review.

In the case of parks, recreation areas, and refuges, the evaluation will explore whether costs are affected by, for example:

1. Eliminating the requirement for the feasible and prudent avoidance alternatives analysis (staff hours and contractor costs).
2. Requiring written concurrence from officials with jurisdiction over the Section 4(f) property (staff hours and contractor costs).
3. Requiring public notice and public comment (notification costs and staff hours and contractor costs).
4. Eliminating staff labor associated with obtaining DOI review.
5. Reducing FHWA/FTA staff labor associated with Section 4(f) review to make a finding as opposed to approval of a Section 4(f) evaluation.
6. Eliminating staff labor associated with the FHWA/FTA legal sufficiency review.

2.4.3 Impact on Section 4(f) Properties

The evaluation will examine the types of measures adopted by projects with de minimis impact findings — avoidance, minimization, mitigation, or enhancement measures — and gather data on de minimis impacts and resulting mitigation on the Section 4(f) property.

2.4.4 Impact on Transportation Projects

Another area of exploration is whether the de minimis impact process results in better designed transportation projects by, for example, including avoidance, minimization, mitigation, or enhancement measures in the project design.

2.4.5 Institutional Issues

The study will investigate various institutional factors, such as hesitancy to use the de minimis impact process; unintended consequences of the process; and the implication on the process associated with the existence of state Section 106 programmatic agreements.⁵

Hesitancy by FHWA or states to use the de minimis impact process or ineffective or inappropriate use of the process could be due to: 1) lack of appropriate projects; 2) reluctance of stakeholders to use a new procedure; and 3) lack of technical knowledge, skills, and abilities. In addition, in states where the de minimis impact provision appears to have been successfully implemented, stakeholders will be asked for their observations on the critical factors which promoted success.

2.5 Analysis of National Trends and Patterns

FHWA and FTA are collecting data on projects with de minimis impact findings. The inventory provides a rich source of data to answer the following questions about national trends and patterns:

• What are the locations, sizes, and costs of projects with de minimis impact findings (required by SAFETEA-LU in report to Congress)?
• Which states are actively using the de minimis impact provision?
• Are there regional trends in the number of de minimis impact findings?
• What is the representation of the four types of 4(f) resources?
• Are there particular types of transportation projects that are more likely to have de minimis impact findings?
• What is the scale (size and cost) of transportation projects with de minimis impact findings?
• What is the NEPA Class of Action for projects with de minimis impact findings?

2.6 Project Categories for Evaluation

Based on initial findings of trends and patterns from the analysis of the data, a representative sample of projects will be selected for more detailed investigation. Appendix E shows a list of categories that may be useful to frame the selection of a sample. Other variables to be taken into account when selecting a sample are size and/or complexity of project, type of resource, geographic diversity, transit and highway, and type of mitigation.

2.7 Conducting the Analysis

The study will use stakeholder interviews to investigate the evaluation questions with respect to the five research areas. Site reviews will also be used to examine the evaluation questions in greater depth, and how the de minimis impact process is working under various conditions.

2.7.1 Stakeholder Interviews

The Volpe Center with FHWA and FTA will conduct and document interviews with staff at State DOTs, transit agencies, FHWA headquarters, FTA headquarters, FHWA divisions, FTA regions, and SHPOs (as well as THPOs or ACHP if participating). Interviews will be conducted over the telephone, and based on the evaluation questions an interview guide that will be developed by FHWA and FTA. Analysis will involve comparing and contrasting results from the range of interviewees.

2.7.2 Site Reviews

The Volpe Center with FHWA and FTA will conduct up to five in-depth project reviews examining the implementation of the de minimis impact provision. These “case studies” will be based on data collected during on-site face-to-face interviews with a wide array of stakeholders, including State DOTs, transit agencies, FHWA divisions, FTA regions, SHPOs/THPOs, officials with jurisdiction, and user groups of the Section 4(f) properties as appropriate or applicable.

The results of the case studies will be compared and related to other information gathered from stakeholder interviews and document review from other projects.

2.8 Update and Extend Phase I Results

Phase II will collect estimated time and cost efficiencies as well as post-construction impact and mitigation data for additional projects not visited by using stakeholder interviews. These projects will be identified toward the end of Phase I. Phase I and Phase II data will be combined to investigate possible correlations between estimated time and cost efficiencies and project, 4(f) properties, and mitigation variables. The purpose of this analysis is to investigate whether there is a strong or weak link between time and cost efficiencies and specific project variables. This information may help FHWA and FTA staff better understand the key drivers of potential efficiencies and communicate the influence of these drivers to those implementing the provision in the field.

In addition, depending on Phase I results, a limited number of case studies may be conducted to examine in more detail illustrative examples of the implementation of the de minimis impact provision.

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3 Evaluation of Feasible and Prudent Standards

3.1 Focus

Section 6009(b) of SAFTEA-LU directed the U.S. DOT to issue regulations to clarify the factors to be considered and the standards to be applied in determining whether alternatives are prudent and feasible. Congress maintained that the fundamental legal standard contained in the Overton Park decision for evaluating the prudence and feasibility of avoidance alternatives remain as the legal authority for these regulations. However, SAFETEA-LU directed the U.S. DOT to provide more detailed regulations on applying these standards.⁶

Phase I will document the process used to develop the final rule. Phase II will focus on the implementation of the new criteria and standards after further implementation of the final rule.

3.2 Phase I: Process Evaluation

Phase I will document the rulemaking process using the following approach:

1. Document the rulemaking process through interviews with FHWA and FTA staff;
2. Analyze the changes to the Section 4(f) regulations;
3. Document the substantive public comments on the NPRM and the responses; and,
4. Document other aspects of implementation as appropriate, including training agency staff on the regulation.

Exhibit 2 on the following page shows the timeline for developing the final rule.

Exhibit 2. Process Timeline for Amending the Section 4(f) Regulation

3.2.1 FHWA and FTA's Rulemaking Process

In response to the SAFETEA-LU directive, FHWA and FTA began drafting modifications to the existing 4(f) regulations. A working group comprising legal and Section 4(f) practitioners from headquarters, resource and field offices, with regular input from staff in the Office of the Secretary, analyzed the standards of judicial review and long-standing FHWA and FTA policy. In addition to addressing the SAFETEA-LU requirements, FHWA and FTA also clarified additional issues surrounding Section 4(f) and codified procedures that had previously only been in agency guidance documents.

Phase I will document the rulemaking process by interviewing staff and analyzing supporting documents.

3.2.2 NPRM in Federal Register

On July 27, 2006, FHWA and FTA published a Notice of Proposed Rulemaking in the Federal Register.⁷ The proposed regulation made six principle changes to the Section 4(f) regulation:

1. Moved the Section 4(f) language to a new Part: 23 CFR 774;
2. Defined ”feasible and prudent;“
3. Outlined clear criteria for selecting the alternative that causes the least overall harm;
4. Defined and implements the procedures for determining a de minimis impact;
5. Updated exceptions to Section 4(f) requirements; and
6. Clarified the option of applying a programmatic Section 4(f) evaluation.

The Phase I study will examine the rationale and methods used for each of these changes.

3.2.3 Public Comments to the NPRM

The comment period on the Section 4(f) NPRM was open from July 26, 2006 to September 25, 2006. FHWA and FTA received a total of 37 responses. Out of the 37 responses, 17 were submitted by State and regional transportation agencies; 6 responses were submitted by trade associations; 9 responses were submitted by 11 national and local environmental advocacy groups; 2 responses were from Federal agencies; 1 response was from a State Historic Preservation Officer, and 2 responses were from private individuals. FHWA and FTA reviewed and fully considered each of the 37 comments received.

The Phase I study will document these comments and the U.S. DOT response.

3.2.4 Final Rule in Federal Register

At a minimum, the study will highlight the changes made in the final rule and provide the reasons for these changes.

3.3 Phase II: Implementation Evaluation

Phase II will rely on stakeholder interviews and case studies to evaluate the implementation of the new feasible and prudent avoidance alternative standards. Projects will be selected after the rule has been issued and more information is available about experiences with implementation.

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4 Evaluation Timeline

Exhibit 3 identifies the preliminary schedule for the Phase I and Phase II evaluation. The final Phase II report to Congress is due in March 2010.

Exhibit 3. 6009 Implementation Study Preliminary Schedule

Key

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Appendix A: SAFETEA-LU Requirements

SEC. 6009. Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites.

• (a) Programs and Projects With De Minimis Impacts.--
  • (1) Title 23.--Section 138 of title 23, United States Code, is amended--
    • (A) in the first sentence, by striking “it is hereby” and inserting the following:
      “(a) Declaration of Policy.--It is”; and
      (B) by adding at the end the following:
      “(b) De Minimis Impacts.--
      
  • “(1) Requirements.--
    • “(A) Requirements for historic sites.--The requirements of this section shall be considered to be satisfied with respect to an area described in paragraph
  • (2) if the Secretary determines, in accordance with this subsection, that a transportation program or project will have a de minimis impact on the area.
    • “(B) Requirements for parks, recreation areas, and wildlife or waterfowl refuges.--The requirements of subsection (a)(1) shall be considered to be satisfied with respect to an area described in paragraph (3) if the Secretary determines, in accordance with this subsection, that a transportation program or project will have a de minimis impact on the area. The requirements of subsection (a)(2) with respect to an area described in paragraph (3) shall not include an alternatives analysis.
      “(C) Criteria.--In making any determination under this subsection, the Secretary shall consider to be part of a transportation program or project any avoidance, minimization, mitigation, or enhancement measures that are required to be implemented as a condition of approval of the transportation program or project.
  • “(2) Historic sites.--With respect to historic sites, the Secretary may make a finding of de minimis impact only if--
    • “(A) the Secretary has determined, in accordance with the consultation process required under section 106 of the National Historic Preservation Act (16 U.S.C. 470f), that--
      ”(i) the transportation program or project will have no adverse effect on the historic site; or
      “(ii) there will be no historic properties affected by the transportation program or project;
    • “(B) the finding of the Secretary has received written concurrence from the applicable State historic preservation officer or tribal historic preservation officer (and from the Advisory Council on Historic Preservation if the Council is participating in the consultation process); and
    • “(C) the finding of the Secretary has been developed in consultation with parties consulting as part of the process referred to in subparagraph (A).
  • “(3) Parks, recreation areas, and wildlife or waterfowl refuges.--With respect to parks, recreation areas, or wildlife or waterfowl refuges, the Secretary may make a finding of de minimis impact only if--
    • “(A) <<NOTE: Notice.>> the Secretary has determined, after public notice and opportunity for public review and comment, that the transportation program or project will not adversely affect the activities, features, and attributes of the park, recreation area, or wildlife or waterfowl refuge eligible for protection under this section; and
    • “(B) the finding of the Secretary has received concurrence from the officials with jurisdiction over the park, recreation area, or wildlife or waterfowl refuge.”.
  • (2) Title 49.--Section 303 of title 49, United States Code, is amended--
    • (A) by striking “(c) The Secretary” and inserting the following:
      “(c) Approval of Programs and Projects.--Subject to subsection (d), the Secretary”; and
    • (B) by adding at the end the following:
      “(d) De Minimis Impacts.--
      • “(1) Requirements.--
        
        • “(A) Requirements for historic sites.--The requirements of this section shall be considered to be satisfied with respect to an area described in paragraph
      • (2) if the Secretary determines, in accordance with this subsection, that a transportation program or project will have a de minimis impact on the area.
        • “(B) Requirements for parks, recreation areas, and wildlife or waterfowl refuges.--The requirements of subsection (c)(1) shall be considered to be satisfied with respect to an area described in paragraph (3) if the Secretary determines, in accordance with this subsection, that a transportation program or project will have a de minimis impact on the area. The requirements of subsection (c)(2) with respect to an area described in paragraph (3) shall not include an alternatives analysis.
        • “(C) Criteria.--In making any determination under this subsection, the Secretary shall consider to be part of a transportation program or project any avoidance, minimization, mitigation, or enhancement measures that are required to be implemented as a condition of approval of the transportation program or project.
        • “(2) Historic sites.--With respect to historic sites, the Secretary may make a finding of de minimis impact only if--
        • “(A) the Secretary has determined, in accordance with the consultation process required under section 106 of the National Historic Preservation Act (16 U.S.C. 470f), that--
        • “(i) the transportation program or project will have no adverse effect on the historic site; or
        • “(ii) there will be no historic properties affected by the transportation program or project;
        • “(B) the finding of the Secretary has received written concurrence from the applicable State historic preservation officer or tribal historic preservation officer (and from the Advisory Council on Historic Preservation if the Council is participating in the consultation process); and
        • “(C) the finding of the Secretary has been developed in consultation with parties consulting as part of the process referred to in subparagraph (A).
      • “(3) Parks, recreation areas, and wildlife or waterfowl refuges.--With respect to parks, recreation areas, or wildlife or waterfowl refuges, the Secretary may make a finding of de minimis impact only if--
        • “(A) the Secretary has determined, after public notice and opportunity for public review and comment, that the transportation program or project will not adversely affect the activities, features, and attributes of the park, recreation area, or wildlife or waterfowl refuge eligible for protection under this section; and
        • “(B) the finding of the Secretary has received concurrence from the officials with jurisdiction over the park, recreation area, or wildlife or waterfowl refuge.”.
• (b) Clarification of Existing Standards.--
  • (1) In general.--Not later than 1 year after the date of enactment of this Act, the Secretary shall (in consultation with affected agencies and interested parties) promulgate regulations that clarify the factors to be considered and the standards to be applied in determining the prudence and feasibility of alternatives under section 138 of title 23 and section 303 of title 49, United States Code.
  • (2) Requirements.--The regulations--
    • (A) shall clarify the application of the legal standards to a variety of different types of transportation programs and projects depending on the circumstances of each case; and
    • (B) may include, as appropriate, examples to facilitate clear and consistent interpretation by agency decisionmakers.
• (c) Implementation Study.--
  • (1) In general.--The Secretary shall--
    • (A) conduct a study on the implementation of this section and the amendments made by this section; and
    • (B) commission an independent review of the study plan and methodology, and any associated conclusions, by the Transportation Research Board of the National Academy of Sciences.
  • (2) Components.--In conducting the study, the Secretary shall evaluate--
    • (A) the processes developed under this section and the amendments made by this section and the efficiencies that may result;
    • (B) the post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects conducted under this section and the amendments made by this section; and
    • (C) the quantity of projects with impacts that are considered de minimis under this section and the amendments made by this section, including information on the location, size, and cost of the projects.
  • (3) Report requirement.--The Secretary shall prepare--
    • (A) not earlier than the date that is 3 years after the date of enactment of this Act, a report on the results of the study conducted under this subsection; and
    • (B) not later than March 1, 2010, an update on the report required under subparagraph (A).
  • (4) Report recipients.--The Secretary shall--
    • (A) submit the report, review of the report, and update required under paragraph (3) to--
      • (i) the appropriate committees of Congress;
      • (ii) the Secretary of the Interior; and
      • (iii) the Advisory Council on Historic Preservation; and
    • (B) make the report and update available to the public.

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Appendix B: 49 U.S.C. 303

Policy on Lands, Wildlife and Waterfowl Refuges, and Historic Sites

1. It is the policy of the United States Government that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.
2. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States, in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of lands crossed by transportation activities or facilities.
3. APPROVAL OF PROGRAMS AND PROJECTS. —Subject to subsection (d), the Secretary may approve a transportation program or project (other than any project for a park road or parkway under section 204 of title 23) requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if —
   1. there is no prudent and feasible alternative to using that land; and
   2. the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.
   3. DE MINIMIS IMPACTS. —
   4. REQUIREMENTS. —
      1. REQUIREMENTS FOR HISTORIC SITES. — The requirements of this section shall be considered to be satisfied with respect to an area described in paragraph (2) if the Secretary determines, in accordance with this subsection, that a transportation program or project will have a de minimis impact on the area.
      2. REQUIREMENTS FOR PARKS, RECREATION AREAS, AND WILDLIFE OR WATERFOWL REFUGES. — The requirements of subsection (c)(1) shall be considered to be satisfied with respect to an area described in paragraph (3) if the Secretary determines, in accordance with this subsection, that a transportation program or project will have a de minimis impact on the area. The requirements of subsection (c)(2) with respect to an area described in paragraph (3) shall not include an alternatives analysis.
      3. CRITERIA. — In making any determination under this subsection, the Secretary shall consider to be part of a transportation program or project any avoidance, minimization, mitigation, or enhancement measures that are required to be implemented as a condition of approval of the transportation program or project.
   5. HISTORIC SITES. — With respect to historic sites, the Secretary may make a finding of de minimis impact only if —
      1. the Secretary has determined, in accordance with the consultation process required under section 106 of the National Historic Preservation Act (16 U.S.C. 470f), that —

           i. the transportation program or project will have no adverse effect on the historic site; or
         i.i. there will be no historic properties affected by the transportation program or project;

      2. the finding of the Secretary has received written concurrence from the applicable State historic preservation officer or tribal historic preservation officer (and from the Advisory Council on Historic Preservation if the Council is participating in the consultation process); and
      3. the finding of the Secretary has been developed in consultation with parties consulting as part of the process referred to in subparagraph (A).
   6. PARKS, RECREATION AREAS, AND WILDLIFE OR WATERFOWL REFUGES. — With respect to parks, recreation areas, or wildlife or waterfowl refuges, the Secretary may make a finding of de minimis impact only if —
      1. the Secretary has determined, after public notice and opportunity for public review and comment, that the transportation program or project will not adversely affect the activities, features, and attributes of the park, recreation area, or wildlife or waterfowl refuge eligible for protection under this section; and
      2. the finding of the Secretary has received concurrence from the officials with jurisdiction over the park, recreation area, or wildlife or waterfowl refuge.

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Appendix C: Compilation of Preliminary Data Inventory

As of March 24, 2008

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Appendix D: Draft Interview Guide

1. Time and Cost Implications

• a. General
  • - What have been the primary sources of change in the time and/or cost to conduct projects?
  • - How have the following factors affected time and/or cost to conduct projects?
    • - eliminating the need for DOI review? Describe 1-2 representative examples.
    • - reducing FHWA/FTA review? Describe 1-2 representative examples.
    • - eliminating the FHWA/FTA legal sufficiency review? Describe 1-2 representative examples
• b. Specific to Historic Properties
  • - What effects has relying on Section 106 determination had on time?
  • - How have costs changed by not duplicating the Section 106 determination?
  • - How has the de minimis impact provision affected
    • - the speed of the coordination process? (up/down, by how much?)
    • - the cost of the coordination process? (up/down, by how much?)
• c. Specific to Parks, Recreation Areas, and Refuges
  • - Has the provision changed the way the state DOT (or transit agency) interacts with resource agencies and officials with jurisdiction?
  • - How has the de minimis impact provision affected
    • - the speed of the coordination process? (up/down, by how much?)
    • - the cost of the coordination process? (up/down, by how much?)
  • - What time and costs have been associated with conducting public notice and public comment review?
  • - Has the state DOT updated the public involvement procedures to include the de minimis impact process? How are transit agencies fulfilling the public involvement requirement?
  • - How has the need for written concurrence from officials with jurisdiction affected the time or cost needed? If they have, estimate the amounts.

2. Impact on Section 4(f) Properties

• a. General
  • - What criteria were used to determine “no adverse effect” or “no effect” on a property?
  • - To what extent has the state DOT (or transit agency) fulfilled the commitment as intended?
  • - Has anything prevented implementing the mitigation commitments on which a de minimis impact finding was made? Describe.
  • - What were the key activities, features, and attributes of the property before the project?
  • - Did the project result in unintended effects (negative or positive) for the property?
  • - Has the use of the property changed as a result of the project? If so, how?
  • - Has user satisfaction with the property changed as a result of the project? If so, how? How do you know?

3. Impact on Transportation Projects

• a. General
  • - How did the original transportation design change to obtain the de minimis impact finding?
  • - What avoidance, minimization, mitigation, or enhancement measures were included in the project design?
  • - What was the relative cost of these measures to the overall project cost?
  • - Did the project design result in unintended effects or benefits for the property?

4. Institutional Issues

• a. General
  • - Has the provision changed the way the DOT or transit agency interacts with SHPOs, THPOs, or other agencies?
  • - Do staff feel they have the knowledge and skills to use the de minimis impact process effectively?
  • - What are the reasons the de minimis impact process has not been used in a state?
  • - Have stakeholders been reluctant to engage the de minimis impact process? Why? How have they expressed their reluctance?

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Appendix E: Sample Selection Strategy

Purpose: Phase I of the Section 6009 Implementation Study will rely on qualitative methods (stakeholder interviews and site reviews) to identify the efficiencies and impacts associated with the implementation of the de minimis impact provision. The study team will propose a representative sample of the 52 FHWA divisions, 3 FHWA Federal Land divisions, and 10 FTA regions to evaluate.

Objective: Develop sampling parameters that minimize the risk of not obtaining an accurate depiction of the issues and impacts associated with the implementation of the de minimis impact provision.

Strategy: The study team will develop a criteria-based process to select state/transit programs that can provide the information needed to answer the study's evaluation questions. The following criteria are recommended to capture the entire range of issues associated with the implementation of the de minimis impact provision:

• State/Transit Programs that have 0 to 10 projects with de minimis impact findings ⁸
• State/Transit Programs that have 11 to 15 projects with de minimis impact findings ⁹
• State/Transit Programs that have more than 15 projects with de minimis impact findings ¹⁰
• State/Transit Programs that have completed construction of projects with de minimis impact findings

Additional information that may be used to select a cross-section of State/Transit Programs could include:

• Existence of a Section 106 Programmatic Agreement
• Geographic location

The study team will conduct telephone interviews with stakeholders from the initial list of states. Based on initial findings, the study team will visit a limited number of states to obtain more detailed information and visit constructed projects. From those states that have completed construction of projects with de minimis impact findings, three to five will be selected for site reviews.

Recommendation: Request approximately 20 State/Transit Programs to participate in stakeholder interviews. The selection will represent a sample of the criteria described on the previous page.

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¹ Excerpted from SAFETEA-LU Sec. 6009. Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites, Stat. 1877, p. 119.
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² Excerpted from SAFETEA-LU Sec. 6009. Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites, Stat. 1877, p. 119.
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³ FHWA Section 4(f) Policy Paper issued on March 1, 2005. www.environment.fhwa.dot.gov/projdev/4fpolicy.asp
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⁴ FHWA and FTA issued “Guidance for Determining De Minimis Impacts to Section 4(f) Resources” on December 13, 2005. www.fhwa.dot.gov/hep/guidedeminimis.htm
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⁵ Statewide Section 106 programmatic agreements (PAs) and related agreement documents administratively delegate some responsibility for Section 106 to the State DOTs. There are currently PAs in the States of Maryland, New Jersey, Pennsylvania, Texas, Vermont, California, and Washington. www.environment.fhwa.dot.gov/)
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⁶ House of Representatives. “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. Conference Report of the Committee of Conference on H.R. 3” 109^th Congress. 1^st Session. Report 109-23, p 1058. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_reports&docid=f:hr203.109.pdf (January 30, 2008).
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⁷ Federal Register. Vol. 71, No. 144, page 42611-42622
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⁸ The mean number of projects with de minimis impact findings is 4.5, with a standard deviation of 5.4. This range represents one standard deviation from the mean.
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⁹ The mean number of projects with de minimis impact findings is 4.5, with a standard deviation of 5.4. This range represents two standard deviations from the mean.
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¹⁰ The mean number of projects with de minimis impact findings is 4.5, with a standard deviation of 5.4. This range represents three standard deviations from the mean.
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