Section 4(f) and 6(f) Training Presented by the Office of Environmental Services September 21, 2017

Thanks for being here today! What’s in it for You? Pre-qualification requirement Project management awareness This class is designed for you! Ask questions Share experiences Interact with peers Thanks for being here today! [2] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Learning Outcomes Define and differentiate Section 4(f) and 6(f) Define and differentiate Section 4(f) and 6(f) Interpret existing regulations and policies Select appropriate determination levels Comprehend the Section 4(f) Manual Comprehend the Section 6(f) PA Recognize how to prepare documentation Recognize how to document decision-making [3] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Agenda History/Background 4(f) Manual 4(f) Definition and Terms History/Background 4(f) Manual 4(f) Definition and Terms Identifying 4(f) Properties Use Determinations Case Studies Section 6(f) [4] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Introductions Name Employer 4(f)/6(f) Experience Class Expectations Name Employer 4(f)/6(f) Experience Class Expectations [5] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

History/Background [6] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

4(f) Legislation Department of Transportation Act of 1966 Department of Transportation Act of 1966 United States Code (USC) 49 USC Section 1653(f) - 1966 23 USC Section 138 - 1968 49 USC Section 303 - 1983 23 USC Section 138 - 2002 23 CFR 771.135 - 2002 SAFETEA-LU - 2005 Section 4(f) Policy Paper – 2005/rev. 2012 23 CFR 774 - 2008 [7] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Federal-Aid Highway Act of 1968 Amended to include 4(f) language: The Secretary shall not approve any project which requires the “use” of land from a public park, recreation area, wildlife and waterfowl refuge, or historic site, 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 [8] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Implications of 1968 Feasible and Prudent subjective Highway officials continued using public lands Route of least resistance No documentation requirements Generally ignored, until… [9] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Interstate Route 40 A six-lane highway proposed through Overton Park Memphis, TN 342-acre city park Memphis Zoo, 9-hole golf course Levitt Shell - Elvis was here! [10] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Legal Action U.S. DOT sued for not complying with feasible and prudent standard U.S. District Court, Court of Appeals, and Sixth Circuit ruled in favor of U.S. DOT U.S. Supreme Court Case Citizens to Preserve Overton Park v. Volpe U.S. Supreme Court ruled in favor of the plaintiffs March 3, 1971 Ordered reconsideration of the proposed route “…protection of parkland is to be given paramount importance.”Justice Thurgood Marshall Use of 4(f) property requires that no unique problems or unusual factors involved with the alternatives Upheld feasible and prudent [11] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Overton Park – Present Day [12] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Time for Change Congress changed the law in 2005 Improved consistency Goal was better decisions [13] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

SAFETEA-LU (2005) Exempted Interstate from 4(f) Section 6007 Established de minimis Section 6009(a) Clarified feasible and prudent Section 6009(b) [14] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Feasible & Prudent Feasible Alternative constructed with sound engineering Prudent Evaluation of unusual factors or unique problems, such as cost, environmental impacts, social and economic impacts, or community disruption, that reach extraordinary magnitude [15] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Proponents of Change “Are we dealing with the famous Overton Park...or are we dealing with an easily replaceable ball field in an area where a replacement can be located without detriment to the interests of the affected users? The result will be greater consistency in the application of the standard throughout the country.” Senator George Voinovich - 2004 [16] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

23 CFR 774 New regulations issued in March 2008 Clarified feasible and prudent New method of compliance for de minimis impact Adopted standards for choosing alternatives that use 4(f) property 4(f) Policy Paper includes guidance for changes made [17] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Application of the Law (a) Declaration of Policy: The Secretary shall not approve any project which requires the “use" of any significant 4(f) property unless: There is no feasible and prudent alternative to the use of such land Such project includes all possible planning to minimize harm resulting from such use (b) de minimis [18] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Authority & Responsibility 4(f) applies to USDOT agencies Federal approvals can trigger 4(f) IMS, IJS, break in limited access, NHS ODOT responsible for determinations, evaluations, findings and compliance OES issues determinations [19] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

4(f) Manual [20] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

4(f) Manual Updated in 2016 - Electronic Updated in 2016 - Electronic Applies to all levels of environmental classifications Defines determinations and processes Defines coordination process with the Official with Jurisdiction (OWJ) Defines responsibilities regarding documentation and public involvement (PI) Ensures regulations are properly met [21] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

4(f) Definition and Terms 4(f) Definition and Terms [22] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Definition Protects recreational properties and historic sites Protects recreational properties and historic sites Publicly-owned Parks and Recreation Areas Publicly-owned Wildlife and Waterfowl Refuges Public and privately-owned historic sites [23] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Significance Role property plays based on recreation needs and/or community values Historic sites listed or eligible for listing on the NRHP Property presumed significant unless OWJ concludes otherwise 23 CFR 774 ODOT-OES retains final decision in determining significance [24] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Use Definitions Permanent incorporation of land into a transportation facility Temporary occupancy that is adverse to the functions and activities Constructive [25] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Constructive Use Proximity impacts, without acquisition of land, are so great that 4(f) property is substantially impaired Vital function(s) and activities are diminished Value of property in terms of its significance and enjoyment are substantially reduced or lost Degree of impairment based on consultation with OWJ [26] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Official with Jurisdiction Agency that owns or administers a 4(f) property or is the designated representative on matters related to the property Examples include, but not limited to: National Park Service Ohio Department of Natural Resources City Parks and Recreation Director Metroparks School Superintendent [27] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Official with Jurisdiction The OWJ for historic sites is the State Historic Preservation Officer The National Park Service (NPS) is also an OWJ for National Historic Landmarks (NHL) [28] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Management Plan Approved by the recognized OWJ Approved by the recognized OWJ Designed to officially designate major purpose and/or function ODOT-OES retains final decision on whether plan articulates activities, functions, and major purpose [29] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Identifying 4(f) Properties Identifying 4(f) Properties [30] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Parks & Recreation Areas 4(f) - (Policy Paper Question #1) Publicly-owned and open to the public AND Officially designated and significant for park and/or recreation purposes Incidental, secondary, occasional or dispersed activities do not constitute a primary purpose Management plan may exist Property may have multiple OWJs [31] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Parks & Recreation Areas No 4(f) Privately-owned Open to a select group only Gated or public housing communities Military personnel and dependents Students of a public school Students, faculty and alumni of a public college or university [32] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Wildlife & Waterfowl Refuges For purposes of 4(f), properties that may function as refuges include: Wildlife management areas, reserves, preserves, or sanctuaries Waterfowl production areas permanently set aside in a form of public ownership for refuge purposes Includes wetlands and uplands Review Management Plan, if available [33] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Wildlife & Waterfowl Refuges 4(f) Publicly-owned, officially designated as such, and significant Primary purpose is conservation, restoration, or management of endangered species and habitat Hunting, fishing, wildlife observation, and picnicking, do not conflict with primary purpose Property may have multiple OWJs [34] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Wildlife & Waterfowl Refuges No 4(f) Privately-owned Major purpose is non-4(f) activities POINT TO REMEMBER “Open to the public” requirement applies exclusively to park and recreation areas Public accessibility does not determine 4(f) Many allow public access - others may not during certain seasons Review Management Plan, if available [35] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Section 106 & 4(f) Section 106 requires consideration of effects upon historic properties Minimal Potential to Cause Effects (PA) No Historic Properties Affected No Adverse Effect Adverse Effect 4(f) coordination required when historic properties are present within the Area of Potential Effect (APE) Identify historic boundaries in relationship to direct impacts on a map [36] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Identify NRHP Listed or Eligible Properties Section 106 & 4(f) Identify NRHP Listed or Eligible Properties Determine Effect No Historic Properties Affected No Adverse Effect Adverse Effect No 4(f) Exception, No Use or de minimis Programmatic or Individual Evaluation NEPA Document

Historic Sites 4(f) - (Policy Paper Question #2) 4(f) - (Policy Paper Question #2) Listed or eligible for listing on the National Register of Historic Places (NRHP) Public or private Includes NHL’s [38] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Historic Districts 4(f) - (Policy Paper Question #2B) 4(f) - (Policy Paper Question #2B) Listed or eligible for listing on the NRHP Individually eligible properties within the district or listed properties that contribute to the eligibility of a district Properties within the boundaries are assumed to contribute, unless otherwise stated or determined not to contribute as a result of Section 106 consultation Re word this slide [39] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Archaeological Sites 4(f) - (Policy Paper Question #3) No 4(f) 4(f) - (Policy Paper Question #3) Listed on or eligible for listing on the NRHP and determined to be important for preservation in place through consultation with SHPO Includes sites discovered during construction No 4(f) Only important for data recovery [40] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Historic Bridges Possible outcomes include: Rehabilitate Bridge Possible outcomes include: Rehabilitate Bridge No Adverse Effect = 774.13(a) Adverse Effect = Use Demolish Bridge Donations (Re-Use) Integrity maintained = No Use Policy Paper Question #8 Re word slide [41] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Public Multiple-Use Land Holdings 4(f) - (Policy Paper Question #4) Portion of land(s) designated by statute or identified in approved management plan Primarily for park, recreation, or refuge and is significant for such purpose No 4(f) Primary purpose is for non-4(f) activities [42] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

School Playgrounds Policy Paper Question #14 Policy Paper Question #14 Defined as the area of school property developed and/or used for park or recreation purposes Baseball Diamonds Soccer Fields Tennis Courts Track and Field facilities Jungle gyms or swing sets 4(f) applies to the playground area, not the entire school property [43] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

School Playgrounds 4(f) Publicly-owned and open to the public AND 4(f) Publicly-owned and open to the public AND Serves either organized or substantial “walk-on” recreation activities considered significant by the OWJ Consult with the OWJ (Superintendent) May be operated by a public entity or organization after school hours Actual function is determining factor [44] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

School Playgrounds No 4(f) Privately-owned Not open to the public No 4(f) Privately-owned Not open to the public Only serves school functions/activities [45] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Safe Routes to School (SRTS) Same procedures as school playgrounds If sidewalks constructed on or near areas deemed “playground”, consult with the OWJ to determine recreational significance [46] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Trails and Shared Use Paths 4(f) – (Policy Paper Question #15) Publicly-owned Designated for recreation Consult with OWJ to determine primary purpose No 4(f) Designated for transportation Not considered significant for recreation [47] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Golf Courses 4(f) – (Policy Paper Question #18) No 4(f) 4(f) – (Policy Paper Question #18) Publicly-owned, operated and managed for the primary purpose of significant public recreation No 4(f) Privately-owned Even if open to the public [48] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Golf Courses Points To Remember Points To Remember 4(f) may apply to publicly-owned courses managed and operated by a private entity based on lease agreement Fees and tee times do not alter 4(f) requirements of public ownership, public access, and significant for recreation Historic sites are not subject to public ownership and access requirements Military properties are not subject to 4(f) [49] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Museums, Aquariums & Zoos Policy Paper Question #19 Publicly-owned museums and aquariums are not considered parks, recreation areas, or wildlife and waterfowl refuges 4(f) applies if a significant historic site Publicly-owned zoos are case-by-case Review Management Plan, if available 4(f) applies if significant for recreation or is an historic site [50] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Fairgrounds 4(f) – (Policy Paper Question #20) No 4(f) 4(f) – (Policy Paper Question #20) Opened to the public Primary function is for recreation Specific portion(s) of land considered significant for park/recreation purposes No 4(f) Primarily for commercial purposes: Stock Car Races Horse Racing County or State Fair [51] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Wild & Scenic Rivers Defined as: Defined as: “A river and the adjacent area within the boundaries of a component of the National Wild and Scenic Rivers (WSR) System” WSR corridors with multiple purposes may be subject to 4(f), contingent on how they are managed Managed by four federal agencies U.S. Forest Service National Park Service U.S. Fish and Wildlife Service Bureau of Land Management [52] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Wild & Scenic Rivers WSRs can have three designations: Wild Scenic WSRs can have three designations: Wild Scenic Recreational Ohio Scenic Rivers Managed by ODNR Ohio first state to have a Scenic Rivers Act [53] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Wild & Scenic Rivers When determining 4(f): Review river designation Review how the river is used Review management plan over that portion of the river, if available [54] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Wild & Scenic Rivers 4(f) - (Policy Paper Question #21) Land designated for recreation or other 4(f) purpose within a WSR Corridor 4(f) may not apply if: The river is under study Land(s) within a WSR corridor are not open to the public Primary purpose is for non-4(f) activities [55] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Planned 4(f) Properties 4(f) - (Policy Paper Question #25) Publicly-owned Formally designated Determined significant for recreation Must be designated in a Master Plan Desire/intent to designate not sufficient No 4(f) Privately-owned [56] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Easements & Lease Agreements Public easements in perpetuity can be considered publicly-owned land for the purpose the easement exists Lease agreements on publicly-owned land may constitute a permanent and proprietary interest Consult with ODOT-OES Ownership, significance, and major purpose of easements are considered [57] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

4(f) Exceptions [58] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Exceptions Certain actions exempted from 4(f) requirements Listed at 23 CFR 774.13 [59] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

23 CFR 774.13 (a) - Restoration, rehabilitation, or maintenance of transportation facilities listed on or eligible for the NRHP No Historic Properties Affected No Adverse Effect (b) - Archaeological sites listed or eligible for the NRHP, but not considered important for preservation-in-place OES Cultural Resources Staff issues determination once Section 106 process is completed [60] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

23 CFR 774.13 (d) - Temporary occupancy of land so minimal that it does not constitute a use Short duration and no change in ownership Scope of work is minor No permanent adverse physical impacts and no interference with protected activities, features, or attributes on a temporary or permanent basis Property restored to a condition as good as or better than prior to construction Concurrence received from OWJ [61] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

23 CFR 774.13 (g) - Transportation enhancement that improves an existing 4(f) property A use does not occur when sole purpose is for preservation or enhancement Receive concurrence from OWJ Use may occur if land is permanently incorporated into transportation facility Use typically does not occur for rehabilitation of highways, bridges, and buildings related to surface transportation [62] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Determination Request Form Submitted for recreational exceptions under 771.13(d), (e), (f), or (g) Project Description Property Description Description of Impacts Measures to Minimize Harm Mapping, plan sheets, and photographs OWJ Concurrence Remove bullets - [63] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Use Determinations [64] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

4(f) Process Overview Federal Is there a use? Action Is a 4(f) Is there a use? Federal Action Is a 4(f) property present? Determination Determine significance NEPA Document [65] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Five Levels of Determination No 4(f) No impacts to an existing 4(f) property OR property is not subject to 4(f) 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 Talking point regarding No 4(f) Individual Evaluation Use of a 4(f) property that does not meet Programmatic Evaluation Criteria [66] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

No 4(f) No 4(f) properties identified within the proposed project area OR 4(f) property is adjacent to the proposed project area, but will not be impacted No ROW No access restrictions No coordination with OWJ or ODOT-OES Standard language provided Standard Operating Procedures for Section 4(f) Recreational Properties [67] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

No Use No incorporation of land from a 4(f) property into a transportation facility No restriction of access Detours that maintain access considered on a case-by case basis [68] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

No Use Recreational Determination Request Form submitted to ODOT- OES Policy via ENVIRONET Cultural Resources Issued by ODOT-OES Cultural Resources Staff upon completion of Section 106 process Determination Request Form not required [69] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Determination Request Form Project Description Property Description Description of Impacts Measures to Minimize Harm Mapping, Plan Sheets, and Photographs Only include plan sheets that depict impacts Only include 4(f) specific photographs OWJ Concurrence [70] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

de minimis No impacts to an existing 4(f) property OR No 4(f) No 4(f) No impacts to an existing 4(f) property OR property is not subject to 4(f) No Use No incorporation of land from a 4(f) property into a transportation facility de minimis Use, but due to avoidance, minimization, mitigation, or enhancement there is no adverse effect on the qualities or function 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 [71] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

de minimis Established in SAFETEA-LU (2005) 23 CFR 774.3 (2008) Established in SAFETEA-LU (2005) 23 CFR 774.3 (2008) Applies to C2 CE’s and higher Simplifies processing and approval of a transportation use of a 4(f) property Typically less documentation Does not replace Programmatic or Individual Evaluations Impacts that meet Programmatic criteria may qualify as de minimis De minimis functionally replaced the Minor Use PEs [72] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

de minimis Considers avoidance, minimization, mitigation or enhancements Avoidance alternatives not required No adverse effect to the recreational activities, features, or attributes Public notice and comment period required 774.5(b) Applies to parks, recreation areas, and wildlife and waterfowl refuges Include all documentation in project file OWJ concurrence required [73] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

de minimis May apply to projects when temporary occupancy is determined to be adverse 774.13(d) criteria exceeded [74] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Requirements Recreational Cultural OWJ Concurrence Public Notification Recreational OWJ Concurrence Public Notification Cultural Concurrence with SHPO No Historic Properties Affected No Adverse Effect Intent to apply de minimis Views of consulting parties considered Requirements for de minimis are different based on the type of property – Policy Paper page 9 [75] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Points to Remember OES issues de minimis determinations Discuss accordingly in NEPA document Include measures to minimize harm that are developed in consultation with the OWJ Emphasize alternatives analysis not required [76] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Determination Request Form Include everything discussed previously, as well as Purpose & Need and Public Involvement Summary [77] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Programmatic Evaluations No 4(f) No impacts to an existing 4(f) property OR property is not subject to 4(f) No Use No incorporation of land from a 4(f) property into a transportation facility de minimis Use, but due to avoidance, minimization, mitigation, or enhancement there is no adverse effect on the qualities or function 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 [78] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Programmatic Evaluations “…time-saving procedural alternative to preparing Individual Evaluations…for certain minor uses of a 4(f) property…” Based on experience with specific set of conditions that include project type, degree of use, and avoidance alternatives May be used if specific conditions are met These pre-date de minimis, except Net Benefit [79] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Programmatic Evaluations Five evaluations issued by FHWA Independent Walkway and Bikeways Historic Bridges Minor Involvements with Historic Sites Minor Involvements with Parks, Recreation Areas and Waterfowl and Wildlife Refuges Net Benefits to a Section 4(f) Property Specifics of each are different Apply each on its own terms www.environment.fhwa.dot.gov/projdev/4fnspeval.asp [80] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Independent Walkway and Bikeways Projects with a primary purpose of providing bicycle or pedestrian facilities No impacts to endangered species habitat No unusual circumstances that involve: Major impacts, adverse effects, or controversy Adverse social or economic impacts Displacement of residents/businesses OWJ Concurrence required Avoidance Alternatives not required [81] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Historic Bridges “Adverse Effect” finding Listed on or eligible for listing on the NRHP Historic integrity impaired either by rehabilitation or demolition Must meet specific criteria on alternatives, findings, and mitigation Agreement between SHPO and ACHP reached as part of Section 106 [82] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Minor Involvements with Historic Sites Projects that improve an existing roadway on essentially same alignment Property located adjacent to the roadway Does not require removal or alteration of historic buildings, structures, or objects No disturbance or removal of archaeological resources determined important for preservation in- place Based on SHPO Consultation [83] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Minor Involvements with Historic Sites Either “No Historic Properties Affected” or “No Adverse Effect” finding SHPO concurs with assessment of impacts and mitigation Does not apply to EIS projects Rarely used in Ohio Rarely used because of de minimis [84] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Minor Involvements with Parks, Recreation Areas and Wildlife and Waterfowl Refuges Projects that improve an existing roadway on essentially same alignment Publicly-owned facilities and/or land Amount and location of land to be used does not impair the use of remaining 4(f) property for its intended purpose Based on the size of the property there are constraints to the amount of land that can be taken Work on combining 91 and 92 [85] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Minor Involvements with Parks, Recreation Areas and Wildlife and Waterfowl Refuges Proximity impacts on remaining land do not impair features, attributes, or function OWJ concurs with assessment of impacts and proposed mitigation If land encumbered with federal interest, appropriate federal agency must not object Does not apply to EIS projects Rarely used in Ohio Rarely used because of de minimis [86] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Net Benefit Transportation use of a 4(f) property Incorporates all appropriate measures to minimize harm and subsequent mitigation The end result must be a net benefit to the 4(f) property Applies to any project regardless of level of NEPA document Subsequently, a "net benefit" is not achieved if the existing features and/or values are substantially diminished [87] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Net Benefit Historic Sites Transportation use does not require major alteration of the characteristics that qualify the property for the NRHP SHPO and ODOT must agree on measures to minimize harm Consistent with 36 CFR 800 [88] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Net Benefit OWJ concurs with: Assessment of impacts Proposed measures to minimize harm Mitigation to preserve, rehabilitate and enhance existing features and values Impacts result in a Net Benefit [89] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Alternatives Analysis Required for: Historic Bridges Minor Use Programmatic Evaluations Net Benefit Demonstrates no feasible and prudent alternative to the use of a 4(f) property [90] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Alternatives Analysis Historic Bridges Do Nothing New structure on new location that does not affect historic integrity of old bridge Rehabilitation does not affect historic integrity [91] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Alternatives Analysis Minor Use Programmatic Evaluations Do Nothing Improves roadway without a use of adjacent 4(f) property Facility on new location without a use of 4(f) property [92] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Alternatives Analysis Net Benefit Do Nothing Improves transportation facility in a manner that addresses P&N without a use of 4(f) property Transportation facility at a location that does not require use of 4(f) property [93] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Points to Remember Illustrate why alternatives that avoid 4(f) property are not feasible and prudent Document agreed upon measures to minimize harm and resulting mitigation ODOT-OES issues determination Contact ODOT-OES Policy if impacts may meet Programmatic Evaluation criteria Elevated to Individual if criteria exceeded [94] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Determination Request Form Everything previously discussed plus Alternatives Analysis, if required [95] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Individual Evaluations No 4(f) No impacts to existing 4(f) property OR property not subject to 4(f) 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 qualities or function 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 [96] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Individual Evaluations Required when Programmatic criteria exceeded Prepared as a stand-alone document Reviewed by other federal agencies Legal sufficiency review NEPA Document D2 or D3 CE, EA, or EIS Can be submitted concurrently FHWA Technical Advisory T6640.8A [97] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Approval Process OES Review 30 calendar days Legal Sufficiency Review OES Review 30 calendar days Legal Sufficiency Review National Park Service (DOI) 14 copies (D.C., Omaha) 45 calendar days One copy to OWJ [98] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

In some cases, the approval process may also include: In some cases, the approval process may also include: One copy to USEPA, if an EIS Two copies to HUD or USDA (very rare) Only if the agency has an interest in the property Six month coordination period [99] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Submittals Project Description Purpose & Need Property Description Project Description Purpose & Need Property Description Impacts to Property Avoidance Alternatives Analysis Public Involvement Summary Measures to Minimize Harm/Mitigation Mapping, Plan Sheets, and Photographs [100] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

4(f)/6(f) Coordination Process 4(f)/6(f) Coordination Process [101] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Recreational 4(f) Identify 4(f) property Identify 4(f) property Informal consultation can be initiated with ODOT-OES Policy Initiate consultation with OWJ, if impacts anticipated Submit Section 4(f)/6(f) Determination Request Form for Recreational Properties Upload to ENVIRONET Word Document, designate as DRAFT ODOT-OES Policy issues/uploads determination Within 30 calendar days Talking points – DRF is not used for informal consultation. Form is submitted/uploaded as a word document/appendices can be uploaded as a PDF [102] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Section 106 4(f) Issued by ODOT-OES Cultural Resources Staff Issued by ODOT-OES Cultural Resources Staff Follows completion of the Section 106 Process Determination Request Form not used For recreational submittals only SHPO afforded a concurrent non-objection period for de minimis determinations [103] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Section 6(f) Review LWCF website Property not listed = No 6(f) Review LWCF website Property not listed = No 6(f) If impacted, initiate informal consultation with ODOT-OES Policy 6(f) PA defines determination levels Information included in the DRF OES can issue Maintenance Determination Only ODOT-OES can coordinate with ODNR/NPS If recreational property not present, no need to review LWCF site. Funding component – state vs federal [104] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Section 6(f) Temporary Non-Conforming Use Issued by ODNR Conversions Temporary Non-Conforming Use Issued by ODNR Conversions Approved by ODNR and NPS ODOT-OES can assist throughout the process Replacement land approved by ODNR and NPS Appraisals required 4(f) determination issued prior to 6(f) approval Conversions can either be small, partial, or full. Informal consultation with OES and ODNR is crucial to determine this. Informal consultation can occur for 6(f) as the 4(f) is being finalized. However, the 4(f) determination must be issued prior to formal coordination/submittal to ODNR/NPS [105] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Determination Request Form Submitted for No Use and higher Not submitted for Section 106 4(f) Exceptions, No Use, and Temporary No Use do not require: Purpose and Need Alternatives Analysis Resource specific public involvement Section 6(f) not always parallel to 4(f) Temporary No Use may be a conversion for 6(f) [106] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Case Studies [107] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Final Thoughts [108] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

NEPA Document May have multiple 4(f) findings The EIS for Cleveland Innerbelt had: Individual de minimis Cultural and Recreational No Use [109] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

4(f) at a Glance No 4(f) No impacts or does not apply Exceptions or No Use Enhancement and/or no incorporation Temporary No Use No permanent impacts de minimis Permanent incorporation; Not adverse Programmatic Net Benefit Individual Adverse Use [110] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

OES Policy Contacts Erica Schneider, Assistant Env. Adminstrator 614-387-0187; Erica.Schneider@dot.ohio.gov Kevin E. Davis, Supervisor 614-752-2788; Kevin.Davis@dot.ohio.gov Doug App, Document Review Coordinator 614-644-0170; Doug.App@dot.ohio.gov Veronica Trecazzi, Document Review Coordinator 614-387-1267; Veronica.Trecazzi@dot.ohio.gov [111] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

Test Follow post-class test instructions 75% is a passing grade [112] Section 4(f) and 6(f) Training – Presented by the Office of Environmental Services

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