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Section 4(f) Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation.

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Presentation on theme: "Section 4(f) Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation."— Presentation transcript:

1 Section 4(f) Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation

2 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 Process Presented by the Ohio Department of Transportation 2

3  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 (2002)  SAFETEA-LU/Section 6009 de minimis (2005)  23 CFR 774 (2008) Legislative History Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation 3

4  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 Process Presented by the Ohio Department of Transportation 4

5  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 Process Presented by the Ohio Department of Transportation 5

6  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 Process Presented by the Ohio Department of Transportation Federal-Aid Highway Act of

7  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 Process Presented by the Ohio Department of Transportation 7

8  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 Process Presented by the Ohio Department of Transportation 8

9  Congress decided it was time to change the law  SAFETEA-LU  Better Consistency  Better Decisions Fast Forward to 2005 Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation 9

10  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 Process Presented by the Ohio Department of Transportation 10

11 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 Process Presented by the Ohio Department of Transportation Present Day 11

12  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 and Applying Section 4(f) Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation 12

13  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 Process Presented by the Ohio Department of Transportation Authority & Responsibility 13

14  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 Process Presented by the Ohio Department of Transportation Significance 14

15  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 Process Presented by the Ohio Department of Transportation Management Plan 15

16  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 Process Presented by the Ohio Department of Transportation OWJ Definition 16

17  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 Process Presented by the Ohio Department of Transportation Use Definition 17

18  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 Process Presented by the Ohio Department of Transportation Constructive “Use” 18

19 Five Levels of Determination No Use No incorporation of a 4(f) property into 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 meets criteria established by FHWA Individual Evaluation “Use” of a 4(f) property that does not meet Programmatic Evaluation criteria No 4(f) No impacts to an existing 4(f) property OR property is not subject to 4(f) 19

20  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 Process Presented by the Ohio Department of Transportation No 4(f) Determination 20

21  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 Process Presented by the Ohio Department of Transportation No Use Determination 21

22  FHWA identified exceptions to 4(f) approval  23 CFR  Do not compromise preservation purpose  Contact OES if you have a possible exception Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation Exceptions 22

23  (a) - Restoration, rehabilitation, or maintenance of transportation facilities listed on or eligible for the NRHP  “No Adverse Effect” to historic qualities  (b) - Archaeological sites listed or eligible for the NRHP; but not considered important for preservation-in-place Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation Exceptions 23

24  (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 Process Presented by the Ohio Department of Transportation 24

25  (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 Process Presented by the Ohio Department of Transportation 25

26  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 Process Presented by the Ohio Department of Transportation 26

27 de minimis No Use No incorporation of a 4(f) property into 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 meets criteria established by FHWA Individual Evaluation “Use” of a 4(f) property that does not meet Programmatic Evaluation criteria No 4(f) No impacts to an existing 4(f) property OR property is not subject to 4(f) 27

28  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 Process Presented by the Ohio Department of Transportation 28

29  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 Process Presented by the Ohio Department of Transportation 29

30  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 Process Presented by the Ohio Department of Transportation de minimis 30

31 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 Process Presented by the Ohio Department of Transportation 31

32  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 Process Presented by the Ohio Department of Transportation de minimis Submittals 32

33 Programmatic Evaluations No Use No incorporation of land from a 4(f) property into 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 meets criteria established by FHWA Individual Evaluation “Use” of a 4(f) property that does not meet Programmatic Evaluation criteria No 4(f) No impacts to an existing 4(f) property Property is not subject to 4(f) 33

34  “…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 Process Presented by the Ohio Department of Transportation 34

35  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 Programmatic Evaluations Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation 35

36  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 Process Presented by the Ohio Department of Transportation Programmatic Evaluations 36

37  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 Process Presented by the Ohio Department of Transportation Independent Walkway & Bikeways 37

38  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 Process Presented by the Ohio Department of Transportation Historic Bridges 38

39  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 Process Presented by the Ohio Department of Transportation Minor Involvements w/Historic Sites 39

40  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 Process Presented by the Ohio Department of Transportation Minor Involvements w/Parks, Recreation Areas and Wildlife & Waterfowl Refuges 40

41  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 Process Presented by the Ohio Department of Transportation Net Benefit 41

42  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 Process Presented by the Ohio Department of Transportation Alternatives Analysis 42

43  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 Process Presented by the Ohio Department of Transportation Programmatic Evaluation Submittals 43

44 Individual Evaluation No Use No incorporation of land from a 4(f) property into 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 meets criteria established by FHWA Individual Evaluation “Use” of a 4(f) property that does not meet Programmatic Evaluation criteria No 4(f) No impacts to an existing 4(f) property or property not subject to 4(f) 44

45  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 Process Presented by the Ohio Department of Transportation Individual Evaluations 45

46  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 Process Presented by the Ohio Department of Transportation Individual Evaluations for CEs 46

47  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 Process Presented by the Ohio Department of Transportation 47

48 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 Process Presented by the Ohio Department of Transportation 48

49  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 Process Presented by the Ohio Department of Transportation Individual Evaluation & DEIS 49

50  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 Process Presented by the Ohio Department of Transportation Individual Evaluation & FEIS 50

51  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 Process Presented by the Ohio Department of Transportation Individual 4(f) Approval Process 51

52 4(f) PROPERTYDETERMINATION No impacts Not subject to 4(f) No 4(f) Protected No incorporation of 4(f) property “No Use” Protected Temporary Occupancy Temporary “No Use” Protected Permanent Incorporation “No Adverse Effect” “Temporary Adverse Effect” de minimis Protected Minor “Use” Programmatic Evaluation Protected Major Adverse “Use” Individual Determination Quick Guide 52

53 Type of 4(f) Properties Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation 53

54 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 Process Presented by the Ohio Department of Transportation Parks & Recreation Areas 54

55 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 Process Presented by the Ohio Department of Transportation Parks & Recreation Areas 55

56  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 Process Presented by the Ohio Department of Transportation 56

57  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 Process Presented by the Ohio Department of Transportation 57

58 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 Process Presented by the Ohio Department of Transportation 58

59 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 Process Presented by the Ohio Department of Transportation 59

60 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 Process Presented by the Ohio Department of Transportation Historic Sites 60

61 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 Process Presented by the Ohio Department of Transportation Historic Districts 61

62  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 Process Presented by the Ohio Department of Transportation National Historic Landmarks 62

63  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 Process Presented by the Ohio Department of Transportation 63

64 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 Process Presented by the Ohio Department of Transportation Archaeological Sites 64

65 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 Process Presented by the Ohio Department of Transportation Archaeological Districts 65

66 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 Process Presented by the Ohio Department of Transportation Multiple-Use Land Holdings 66

67  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 Process Presented by the Ohio Department of Transportation 67

68 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 Process Presented by the Ohio Department of Transportation 68

69 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 Process Presented by the Ohio Department of Transportation 69

70  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 Process Presented by the Ohio Department of Transportation 70

71 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 Process Presented by the Ohio Department of Transportation 71

72  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 (g) Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation Transportation Enhancements 72

73 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 Process Presented by the Ohio Department of Transportation 73

74 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 Process Presented by the Ohio Department of Transportation 74

75  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 Process Presented by the Ohio Department of Transportation Museums, Aquariums and Zoos 75

76 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 Process Presented by the Ohio Department of Transportation 76

77  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 Process Presented by the Ohio Department of Transportation Wild & Scenic Rivers 77

78  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 Process Presented by the Ohio Department of Transportation Wild & Scenic Rivers 78

79 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 Process Presented by the Ohio Department of Transportation 79

80 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 Process Presented by the Ohio Department of Transportation 80

81  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 Process Presented by the Ohio Department of Transportation Easements & Lease Agreements 81

82 SECTION 4(f) PROGRAMMATIC AGREEMENT Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation 82

83  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 Process Presented by the Ohio Department of Transportation Background 83

84  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 Process Presented by the Ohio Department of Transportation 84

85  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 Process Presented by the Ohio Department of Transportation 85

86  Establishes processing and documentation of exceptions in accordance with 23 CFR  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 Process Presented by the Ohio Department of Transportation 86

87 SECTION 6(F) LAND & WATER CONSERVATION FUND ACT (LWCF) Managing the Environmental & Project Development Process Presented by the Ohio Department of Transportation 87

88  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 Process Presented by the Ohio Department of Transportation LWCF Purpose 88

89  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 Process Presented by the Ohio Department of Transportation Background 89

90  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 Process Presented by the Ohio Department of Transportation Background 90

91  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 Process Presented by the Ohio Department of Transportation Regulatory Protection 91

92 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 Process Presented by the Ohio Department of Transportation Regulatory Protection 92

93 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 Process Presented by the Ohio Department of Transportation Regulatory Protection 93

94  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 Process Presented by the Ohio Department of Transportation 6(f) Conversion Process 94

95  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 Process Presented by the Ohio Department of Transportation 6(f) Conversion Process 95

96  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 Process Presented by the Ohio Department of Transportation 4(f)/6(f) Relationship 96


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