Section 4(f) Streamlining Meeting

**Eastern Resource Center Geographical Area**

**FHWA Headquarters, Room 4200**

**Washington, D.C.**

**February 15, 2001**

**Purpose**: To facilitate a better common understanding of legitimate
flexibility currently available under Section 4(f) and to explore
opportunities to streamline Section 4(f) processes.

**I. Introduction**

Cindy Burbank opened the meeting with a charge to the group to

> a\) find flexibility in Section 4(f),
>
> b\) reach decisions that have "common sense" results, and
>
> c\) be timely in Section 4(f) evaluations.

These three goals are especially important in the context of FHWA's
policy of environmental streamlining. Streamlining will be in the next
transportation legislation and AASHTO has identified Section 4(f) as the
number one roadblock to timely environmental reviews. This perception is
supported by a study recently conducted for FHWA that showed involvement
with Section 4(f) increased the time frame for EIS projects by as much
as two years. Cindy also noted the importance of FHWA showing
flexibility and promoting balanced decisions as part of the push for
other agencies to be flexible in their oversight roles. Compliance with
Section 4(f) should not be used as a "trump card" over other resources
and to do so undermines environmental streamlining.

Ed Kussy provided background and context for the legal standards applied
in Section 4(f) evaluations and documentation. The first level of legal
standards applied in environmental law is "prohibition", such as the
Endangered Species Act, where a finding of "jeopardy" stops the action.
Second is the standard applied under Section 4(f) that must examine
"feasible and prudent" alternatives and document "unique problems" of
"extraordinary magnitude" before there is use of protected resources.
The third test is one of "most practicable", such as Section 404. This
requires a rigorous analysis and a decision that takes into account the
best public interest. The fourth standard is exemplified by NEPA, a law
that sets out a process to foster good decision-making. Finally there
are the "think about it" laws, such as Section 106 or Farmland
Protection Act, which require consideration and consultation. However,
application of different legal standards does not mean that one resource
is more important than another resource. What is important is showing
that we understand the different standards when we reach decisions and
document the reasons behind that decision. For example, it may be more
prudent to use parkland and avoid prime farmland, depending on the
context.

**II. Issues/Case Studies**

Fred Skaer asked the group to think of Section 4(f) issues that
presented challenges in environmental streamlining. He presented three
areas:

> 1\) quality of decisions or outcomes;
>
> 2\) timeliness, especially for smaller projects (Categorical
> Exclusions or Environmental Assessments); and
>
> 3\) quality of documentation, i.e., how we state the facts are just as
> important as the facts.

Other issues added by the group included 4) Section 4(f) applicability
and the pressure not to invoke Section 4(f) because of the added
time/effort; 5) the consideration under Section 4(f) for post-WW II
development assessed as eligibility for the National Register (Robert
Kleinburd) and 6) the general overlap between Section 106 and Section
4(f) (Amy Fox).

Fred Skaer then asked invited state DOT representatives to present their
perspectives. Neil Pedersen, MD SHA, stated that his number one issue
was trying to explain to local officials and the public decisions based
on Section 4(f) that did not have public support. He gave an example
where a highway widening would encroach upon a large, active church in
the community in order to avoid a vacant historic house. The owner of
the house was so upset by this decision he burnt the property down.

Gary McVoy, NYSDOT, agreed that the application of Section 4(f) to
historic properties leads to "skewed" decisions and/or adds time to
project schedules as the DOT tries to develop avoidance alternatives.
This is especially troublesome when the SHPO is in agreement with the
mitigation of adverse effects to the historic property and Section 106
is completed. Dan Berman noted that the Section 106 nexus is becoming
increasingly difficult because of how "eligibility" for the National
Register has evolved in the last thirty years. Jim Scouten explained how
the Section 4(f) regulations tied the application of historic properties
to the National Register eligibility criteria and the Section 106
process. The only way to apply a different standard would be to change
the regulations.

Neil Pedersen presented others examples where Section 4(f) affected
decisions. These ranged from the use of all state funding in historic
districts for community conservation/context sensitive design projects
to dropping a project altogether because it would have required a design
not supported by the community (removal of mature trees to avoid use of
a historic property). Both Gary McVoy and Dan Johnson suggested that it
would be pertinent to bring in other viewpoints, be it the SHPO,
agencies of jurisdiction (park owners) or public as part of the Section
4(f) evaluation.

Neil Pedersen also briefly referred to a case study from Maryland
included in the meeting package and noted the delays encountered during
legal sufficiency review. He suggested that legal review occur at the
DEIS stage, rather than FEIS, to get at issues earlier. Jim Scouten
agreed with the concept of early involvement by legal staff and noted
the decision of when to involve legal rests with the Division Offices.

Jim Cheatham raised the problems associated with avoidance of a
privately owned historic property under Section 4(f) when there are
plans to develop this area. He gave an example in Pennsylvania and said
it was very difficult to explain the selection of an avoidance
alternative to the public under those conditions. Jim Scouten noted that
this decision is further complicated because of known scrutiny by
potential litigants of the project. Gary McVoy pointed out that the
example illustrates how Section 4(f) is used by others to drive public
decisions that may not be in the best public interest.

Gary McVoy stated that Section 4(f) affects most the smaller projects
classified as CEs that really could benefit from streamlining efforts.
Some of this is because state DOT's often react by immediately looking
to avoid the Section 4(f) resource at all costs, rather than prepare an
evaluation. This sentiment was echoed by Lynn Bortel. She noted
transportation enhancement projects on historic properties often become
bogged down because of the relationship between Section 106 findings of
"adverse effect" and Section 4(f). This often results in dropping the
proposal. Dan Johnson added that Section 4(f) time delay and design
compromises are encountered every day on CE projects. As Robert
Kleinburd noted, local officials can understand delays as bureaucracy,
but not when they lead to bad decisions.

# III. Flexibility

Ed Kussy presented a discussion of legal standards as applied through
case law for the different regions. The most extreme is the "black box"
test sanctioned by the courts in Louisiana and Georgia and applied in
the Southeast region. In short, the Section 4(f) resource is a black box
that cannot be looked into and judged as to its value. Therefore, one
must first avoid the box without considering the types of surrounding
resources or impacts to these resources. If an alternative goes inside
the box, then one looks at minimization measures within the Section 4(f)
resource, again without consideration of the impacts to resources
outside of the box. Other regions of the country apply the Overton Park
criteria. Application of Section 4(f) does have some flexibility as
recognized by the lower courts. For example, an Illinois court wrote
that the cumulative effects to other resources could reach the magnitude
where Section 4(f) use may be prudent. The important keys are to balance
and consider all resources, show understanding of the high legal
standard applied Section 4(f), and document the decision well. The
development of the Purpose and Need Statement is critical in how one
constructs the Section 4(f) decision.

Ed Kussy further explained that the an avoidance alternative can be
rejected if it does not meet the purpose and need when one can
demonstrate the need statement is not artificially constructed to get at
a particular outcome. Both he and Jim Scouten stated that enhancement
benefits may be added to the purpose and need statement to make the case
as why a " no-build" alternative is not desirable. Harold Aikens gave an
example of a project in Nashville where the purpose and need statement
must include information on the benefits of the proposed project in
order to objectively evaluate feasible and prudent avoidance
alternatives under Section 4(f). The documentation of whether or not
there is a prudent avoidance alternative to the use of a Section 4(f)
resource is extremely important.

There was a consensus among the group that historic sites, especially
those privately owned, presented the most difficult cases in Section
4(f) alternative analyses. Tom Smith noted how problems arise when the
highway avoids a historic property no one really cares about. Harold
Aikens urged the project development teams to look at the Section 106
and Section 4(f) interplay up front and not sequentially. He also
stressed the need to be proactive and deal with Section 4(f) as early as
possible during project planning. This begins with the determination of
eligibility by FHWA, including determining boundaries, as eligibility
equates to Section 4(f) significance. FHWA is in a stronger position to
present its case to the Keeper of the National Register if there are
disagreements on resource eligibility when it has made the determination
and documented it.

The question arose as to why do we care if we lose a case on Section
4(f) in court. The answer lies in the fear of setting precedence for
other lawsuits. Another question dealt with the indication by the courts
of what amounted to an "extraordinary magnitude" threshold. Some courts
have stated that "prudent" may be applied as to what is "reasonable".
FHWA must document that the decision is not "arbitrary and capricious"
and we will win in court. Ed Kussy noted that court losses were rare, in
general, but increased when other resource agencies disagreed with FHWA
and these disagreements were not resolved prior to the final decision.
It is extremely rare for the courts to find the documentation adequate
but overturn the FHWA decision because they believe there is a feasible
and prudent alternative.

Ken Dymond pointed out the flexibility currently in place and asked the
Division Offices to talk with lawyers early in the process. Lynn Bortel
remarked they often did not see flexibility by the state DOT and it was
important to include state legal staff in these discussions. Jim Scouten
asked the group not to apply the "black box" test and to look at the
project in its totality during the analysis of prudent avoidance
alternatives. Dave Gamble reminded the group that Section 4(f) use is
still a two-part test: avoidance first and then minimization/mitigation.

**IV. Legal Sufficiency**:

Jim Scouten explained that legal staff looks at impacts and proposed
mitigation. The biggest problem with the documentation often lies with
unsupported statements. To be legally sufficient, the document must
include factual information describing the impacts or deficiencies of an
avoidance alternative so one can reach a reasonable conclusion to use a
Section 4(f) resource. Another problem is applying inconsistent logic in
the description of impacts throughout the document. For example, the
document cannot say that the highway must take parkland to avoid five
homes when elsewhere in the text the document says the highway must take
five homes to avoid a wetland. These are simple fixes. Jim Scouten also
said legal staff tries to considers time factors by giving conditional
approvals where appropriate. Fred Skaer asked how many of the comments
by legal staff concern adequate documentation versus the "wrong"
decision. The answer is almost always documentation.

Gary McVoy and Jim Cheatham noted that legal sufficiency review added
time and additional documentation requirements to small projects. Gary
asked if the review could be dropped for projects not classed as EISs.
In order to address the time problems for smaller projects, Ken Dymond
suggested the Divisions sit down with legal staff to go over
documentation needs.

Lynn Bortel stated that if the project does not involve Section 4(f) she
feels she can negotiate impacts with other resource agencies. This is
not the case when there is the potential use of Section 4 (f) resources
because they avoid use at the cost of other resources. Ed Kussy stated
the environmental laws offer a forum for discussion. If Section 4(f)
adds two years to the process because of procedure, then that is wrong;
if it adds time because one must carefully consider the application of
Section 4(f), that is the intent of the law. Amy Grove-Jackson discussed
the problems of looking at new alignment alternatives on widening
projects through historic districts. However, because an important part
of the analyses is avoidance alternatives, the feasibility and prudence
of new alignments must still be examined and documented.

Tom Smith summarized the discussion by noting the key to a smooth legal
sufficiency review lies in getting the legal staff involved early during
project development and include a global strategy session if
appropriate.

**V. Opportunities**

Fred Skaer facilitated a group brain storming discussion around five
themes: 1) Training; 2) New Programmatic Section 4(f) Approvals; 3)
Interaction with Section 106; 4) Regulatory Reform; and 5) Statutory
Changes.

Training:

> Prepare case examples of flexibility and send to states
>
> Revise existing Section 4(f) Policy Paper to include a stronger
> discussion on balancing of resources and flexibility in applying the
> law
>
> Hold dialogs with the state DOTs on documentation needs and
> flexibility
>
> Develop "swat teams" of experts to give training
>
> Use multimedia, such as CDs, models or templates, that can be posted
> on the WWW for easy access by transportation professionals in state
> and local agencies and consultants
>
> Develop training on how to put together an Administrative Record

Programmatic Approaches:

> Allow for the use of Programmatic Section 4(f) evaluations when the
> NEPA document is an EIS
>
> Develop a new Programmatic for when there is use of "insignificant"
> areas of a Section 4(f) resource as determined by the agency of
> jurisdiction (similar to multi-use lands)
>
> Develop a new Programmatic for when there is an "adverse effect" on
> historic highways
>
> Develop a new Programmatic for historic bridges that contribute to
> historic districts. This is especially applicable for linear historic
> districts, such as canals.
>
> Develop a new Programmatic for classes of minor projects, e.g., CEs
>
> Ohio Programmatic Section 4(f) proposal
>
> Develop a new Programmatic for parkland where the impacts are fully
> mitigated and the park owner agrees
>
> Develop a new Programmatic when there is use of non-contributing
> elements of a historic property
>
> Add more criteria to existing Nationwide Programmatics on historic
> bridges and minor uses of historic properties that would result in a
> "negative declaration" similar to Bikeways and Pedestrian Paths
>
> Develop a new Programmatic for Transportation Enhancement projects
>
> Develop a new Programmatic for noise impacts

Section 106 Integration:

> Develop Alternative Procedures allowed under Section 106 regulations
> that give FHWA flexibility in applying Section 4(f)
>
> Develop more Section 106 Programmatic Agreements that delegate
> responsibilities to the State DOT following the Vermont model (NOTE:
> the agreement has just been implemented and the Division Office will
> monitor if it will have any effect on the timeliness of Section 4(f)
> evaluations)
>
> Develop list of "exempted" activities as allowed under Section 106
> regulations

Section 4(f) regulations:

> Recognize different levels of "historic significance"
>
> Exemption for wildlife refuges where to the USFWS states the project
> meets the purpose of the refuge
>
> Exclude archaeological resources. Clarify the use of predictive
> modeling for the identification of significant archaeological
> resources is appropriate for Section 4(f) purposes
>
> Only include historic properties listed on the National Register
> (eligible properties are considered under Section 106)
>
> Apply only to historic properties identified at the time of the Act
> (1966)
>
> Apply a "metaphysical" concept to Section 4(f) use versus physical
> incorporation of land
>
> Place more emphasis on the opinion of the park owners or the SHPO if
> they are in agreement with the proposed use
>
> A Section 106 finding of "no adverse effect" means no use
>
> Clarify that Section 4(f) use does not apply when EFL is acting as a
> consultant
>
> Extend exemption of Section 4(f) use to historic properties that are
> only important for information potential or when recordation is
> appropriate mitigation
>
> Change the regulations from the Overton Park language to one promoting
> "balance" in decision making (NOTE: this was a major comments received
> on the NPRM)

Statutory Changes

> Restrict application to historic properties listed on the National
> Register, National Historic Landmarks or nationally significant
> properties
>
> Restrict application to properties that will be preserved
>
> Clarify the use of land to get at value of the land
>
> Restrict application to only public properties
>
> State that successful compliance with Section 106 satisfies the
> Section 4(f) statute
>
> Ed Kussy provided a word of caution on this subject: Efforts to change
> the statutory language can create unexpected and undesirable outcomes.

**VI. Wrap Up**:

Cindy Burbank summarized the next steps as follows:

> Documentation of today's meeting and develop recommendations on how to
> proceed
>
> Develop and disseminate case studies. Will need help from the state
> DOTs and Division Offices in compiling these examples
>
> Will seek input from the field on priorities
>
> Will hold at least one more session that will cover the Southern
> Resource Center geographical area
>
> Revise Section 4(f) Policy Paper. Sessions may also be arranged with
> the Midwest and West if they desire.
>
> Promote flexibility in the application of Section 4(f) with state DOTs
>
> Work on "low-hanging fruit", e.g., training, case studies,
> programmatics
>
> Examine more closely the root causes underlying the statistically
> analysis showing a two year extension for EIS projects with Section
> 4(f) involvement

Cindy concluded the meeting by emphasizing to the group that the
promotion of flexibility and balanced decision making in a timely manner
in Section 4(f) evaluations is a shared responsibility. It is up to
Headquarters, field legal counsel and the Division Offices to apply the
existing flexibility in Section 4(f) as part of FHWA's overall
environmental streamlining goals.