[Federal Register Volume 85, Number 236 (Tuesday, December 8, 2020)]
[Notices]
[Pages 79072-79074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26968]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Federal Transit Administration


Adoption of the Federal Highway Administration's Nationwide 
Section 4(f) Net Benefit and Historic Bridges Programmatic Evaluations

AGENCY: Federal Railroad Administration (FRA), Federal Transit 
Administration (FTA), U.S. Department of Transportation.

ACTION: Notice.

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SUMMARY: FRA and FTA (together ``the Agencies'') are jointly issuing 
this notice to adopt the Federal Highway Administration's (FHWA) 
nationwide programmatic Section 4(f) evaluations for certain 
transportation projects having a net benefit to Section 4(f) properties 
(Nationwide Net Benefit Programmatic Evaluation) and for certain 
transportation projects that use historic bridges (Nationwide Historic 
Bridges Programmatic Evaluation). These nationwide Section 4(f) 
programmatic evaluations would provide the Agencies with an alternative 
to the individual Section 4(f) evaluation process for demonstrating 
compliance with Section 4(f) requirements, as applicable. For proposed 
projects that do not meet the criteria for Section 4(f) exceptions or 
the criteria contained in the Applicability sections of the 
programmatic evaluations, the Agencies will prepare an individual 
evaluation or make a de minimis impact determination.

DATES: The adoption of these evaluations is effective on January 7, 
2021.

FOR FURTHER INFORMATION CONTACT: 
    For FRA: Marlys Osterhues, Chief, Environment and Project 
Engineering Division, Office of Railroad Policy and Development, 
telephone: (202) 493-0413, email: <a href="/cdn-cgi/l/email-protection#165b77647a6f653859656273647e6373655672796238717960"><span class="__cf_email__" data-cfemail="672a06150b1e144928141302150f1202142703081349000811">[email protected]</span></a>; or Faris 
Mohammed, Attorney-Advisor, Office of Chief Counsel, telephone: (202) 
493-7064, email: <a href="/cdn-cgi/l/email-protection#642205160d174a290b0c050909010024000b104a030b12"><span class="__cf_email__" data-cfemail="9bddfae9f2e8b5d6f4f3faf6f6feffdbfff4efb5fcf4ed">[email protected]</span></a>.
    For FTA: Megan Blum, Director, Office of Environmental Programs, 
telephone: (202) 366-0463, email: <a href="/cdn-cgi/l/email-protection#e0ad8587818ecea28c958da0848f94ce878f96"><span class="__cf_email__" data-cfemail="eaa78f8d8b84c4a8869f87aa8e859ec48d859c">[email protected]</span></a>; or Mark 
Montgomery, Attorney-Advisor, Office of Chief Counsel, telephone: (202) 
366-1017, email: <a href="/cdn-cgi/l/email-protection#aae7cbd8c184e7c5c4decdc5c7cfd8d3eacec5de84cdc5dc"><span class="__cf_email__" data-cfemail="a8e5c9dac386e5c7c6dccfc7c5cddad1e8ccc7dc86cfc7de">[email protected]</span></a>.
    FRA and FTA are located at 1200 New Jersey Ave. SE, Washington, DC 
20590. Office hours are from 8 a.m. to 5 p.m. e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 
    Background: The Agencies may not approve a proposed transportation 
project that would use property from significant publicly-owned parks, 
recreation areas, or wildlife and waterfowl refuges or from significant 
historic sites (collectively, ``Section 4(f) properties'') that are 
subject to Section 4(f) requirements (49 U.S.C. 303 and 23 U.S.C. 138), 
unless certain conditions are met. An agency may approve a proposed 
transportation project requiring the use of a Section 4(f) property 
only if the agency determines that: (1) There is no feasible and 
prudent alternative to using that land, and the project includes all 
possible planning to minimize harm to the property resulting from such 
use; or (2) the use of the property, after consideration of avoidance, 
minimization, mitigation, or enhancement measures to be implemented as 
a condition of approval, will have a de minimis impact. These efforts 
generally are documented in an individual evaluation, unless the agency 
makes a de minimis impact determination, or the use meets the criteria 
for one of the Section 4(f) exceptions found at 23 CFR 774.13. As part 
of the individual evaluation, the agency must include a feasible and 
prudent avoidance alternative analysis and identify measures to 
minimize harm. The agency also must provide a public comment period and 
coordinate with official(s) with jurisdiction in the individual 
evaluation process.
    However, FHWA has approved five nationwide programmatic evaluations 
applicable to specific uses of Section 4(f) properties. Programmatic 
evaluations streamline the Section 4(f) process by eliminating the need 
for an individual Section 4(f) evaluation for certain projects. 
Programmatic evaluations can be applied to any class of action under 
the National Environmental Policy Act. FHWA developed the framework and 
basic approach to the programmatic evaluations at a program level to 
cover

[[Page 79073]]

a suite of potential Section 4(f) uses and coordinated with the U.S. 
Department of the Interior when developing the framework. The full 
texts of FHWA's programmatic evaluations are available at: https://www.environment.fhwa.dot.gov/legislation/section4f.aspx.
    On July 5, 1983, FHWA approved the use of a programmatic Section 
4(f) evaluation and approval for FHWA projects that necessitate the use 
of historic bridges. The historic bridges programmatic evaluation sets 
forth the basis for a programmatic Section 4(f) approval that there are 
no feasible and prudent alternatives to the use of certain historic 
bridge structures to be replaced or rehabilitated with Federal funds, 
and the projects include all possible planning to minimize harm 
resulting from such use. The historic bridges programmatic evaluation 
can be applied to a proposed project that meets the following criteria:
    1. The bridge is to be replaced or rehabilitated with Federal 
funds.
    2. The project will require the use of an historic bridge structure 
that is on or is eligible for listing on the National Register of 
Historic Places (NRHP).
    3. The bridge is not a National Historic Landmark.
    4. FRA or FTA, as appropriate, determines the facts of the project 
match those set forth in the Historic Bridges Programmatic Evaluation 
(Alternatives, Findings, and Mitigation sections).
    5. Agreement among FRA or FTA, as appropriate, the State Historic 
Preservation Officer (SHPO), and the Advisory Council on Historic 
Preservation has been reached through procedures pursuant to Section 
106 of the National Historic Preservation Act.
    More information on the Nationwide Historic Bridges Programmatic 
Evaluation can be found in the original Federal Register notice. 48 FR 
38135-03, July 5, 1983.
    On April 20, 2005, FHWA approved the use of a nationwide 
programmatic Section 4(f) evaluation for uses that have a net benefit 
to a Section 4(f) property from certain federally funded transportation 
projects. A net benefit is achieved when: (1) The transportation use, 
the measures to minimize harm, and mitigation incorporated into the 
project result in an overall enhancement to the Section 4(f) property 
when compared to both the future do-nothing or avoidance alternatives 
and the present condition of the Section 4(f) property; and (2) the use 
will not result in a substantial diminishment of the function or value 
that made the property eligible for Section 4(f) protection. The net 
benefit programmatic evaluation cannot be applied to a project if FRA 
or FTA, as appropriate, and the official(s) with jurisdiction over the 
Section 4(f) property cannot reach an agreement that the project will 
result in a net benefit to the property. The net benefit programmatic 
evaluation applicability criteria are as follows:
    1. The proposed transportation project uses a Section 4(f) park, 
recreation area, wildlife or waterfowl refuge, or historic site.
    2. The proposed project includes all appropriate measures to 
minimize harm and subsequent mitigation necessary to preserve and 
enhance those features and values of the property that originally 
qualified the property for Section 4(f) protection.
    3. For historic properties, the project does not require the major 
alteration of the characteristics that qualify the property for the 
NRHP such that the property would no longer retain sufficient integrity 
to be considered eligible for listing. For archeological properties, 
the project does not require the disturbance or removal of the 
archaeological resources that have been determined important for 
preservation in-place rather than for the information that can be 
obtained through data recovery. The determination of a major alteration 
or the importance to preserve in-place will be based on consultation 
consistent with 36 CFR part 800.
    4. For historic properties, consistent with 36 CFR part 800, there 
must be agreement amongst the SHPO and/or THPO, as appropriate, FRA or 
FTA, as appropriate, and the Applicant on measures to minimize harm 
when there is a use of Section 4(f) property. Such measures must be 
incorporated into the project.
    5. The official(s) with jurisdiction over the Section 4(f) property 
agrees in writing with the assessment of the impacts; the proposed 
measures to minimize harm; and the mitigation necessary to preserve, 
rehabilitate and enhance those features and values of the Section 4(f) 
property; and that such measures will result in a net benefit to the 
Section 4(f) property.
    6. The Administration determines that the project facts match those 
set forth in the Applicability, Alternatives, Findings, Mitigation and 
Measures to Minimize Harm, Coordination, and Public Involvement 
sections of this programmatic evaluation.
    More information on the Nationwide Net Benefit Programmatic 
Evaluation can be found in the original Federal Register notice. 70 FR 
20618, April 20, 2005.
    The Agencies currently do not utilize any Section 4(f) programmatic 
evaluations and rely on individual evaluations to satisfy Section 4(f) 
requirements for proposed rail and transit projects that use Section 
4(f) properties. However, the Agencies were afforded more flexibility 
to create programmatic approaches to expedite the overall environmental 
review process under section 1305 of Moving Ahead for Progress in the 
21st Century Act (MAP-21). The ``programmatic approaches'' language 
from MAP-21 is codified at 23 U.S.C. 139(b)(3) and implemented by the 
Agencies in regulation at 23 CFR 771.105. Additionally, as described in 
the final rule in which FRA adopted 23 CFR part 771, FRA evaluated 
whether to adopt, in whole or in part, any of the FHWA programmatic 
evaluations. Based on that evaluation, FRA determined adopting FHWA's 
net benefit and historic bridge programmatic evaluations is appropriate 
for its programs. See 83 FR 54480, 54484 (October 29, 2018). Similarly, 
FTA revisited being part of the net benefit and historic bridge 
programmatic evaluations after considering projects that have gone 
through the Section 4(f) process that could have benefitted from using 
the programmatic evaluations. Accordingly, the Agencies are adopting 
these two nationwide programmatic evaluations with minor technical 
modifications, described below. The technical modifications are limited 
to replacing references to FHWA with the Agencies and definitions 
necessary to accommodate both railroad and transit projects. FRA and 
FTA will provide the full text of the Section 4(f) Programmatic 
Evaluations, as modified below, on their websites.

Technical Modifications to FHWA's Historic Bridges Programmatic 
Evaluation

    The Agencies are replacing the terms ``Federal Highway 
Administration'' and ``FHWA'' with ``Federal Railroad Administration,'' 
``Federal Transit Administration,'' ``FRA.'' or ``FTA,'' as 
appropriate. The Agencies are replacing ``FHWA Division Administrator'' 
with ``Associate Administrator for Railroad Policy and Development, or 
designee,'' or ``FTA Regional Administrator, or designee,'' as 
appropriate. Additionally, the Agencies are modifying the reference to 
a ``Federal-aid highway system or a state or local highway system'' to 
include a ``rail or transit system.''

Technical Modifications to FHWA's Net Benefit Programmatic Evaluation

    The Agencies are replacing the term ``FHWA'' with ``FRA'' or 
``FTA,'' as

[[Page 79074]]

appropriate. The Agencies are also modifying the following definitions:
    1. ``Administration'' to refer to the Federal Railroad 
Administration or the Federal Transit Administration, as appropriate.
    2. ``Applicant'' to be more broadly defined, as follows: 
``Applicant'' refers to the Federal, State, local, or federally 
recognized Indian Tribal governmental unit, or other entity, including 
any private or public-private entity that seeks Federal funding or an 
Administration action for a project.
    Through this Notice, the Agencies are adopting FHWA's Nationwide 
Net Benefit Programmatic Evaluation and the Nationwide Historic Bridges 
Programmatic Evaluation in full, with the minor technical modifications 
described above.

    Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator, Federal Railroad Administration.
K. Jane Williams,
Deputy Administrator, Federal Transit Administration.
[FR Doc. 2020-26968 Filed 12-7-20; 8:45 am]
BILLING CODE 4910-06-P


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