FEDERAL RAILROAD ADMINISTRATION 

SECTION 4(f)/303 STATEMENT 

FOR THE 

DAKOTA, MINNESOTA & EASTERN RAILROAD 

CORPORATION 

APPLICATION FOR 

RAILROAD REHABILITATION AND 

IMPROVEMENT FINANCING 

RELATING TO THE 

POWDER RIVER BASIN EXPANSION PROJECT 

 

 

 

 

JANUARY 2007 
 Summary 

Section 303 Statement S-1 January 2007 

SUMMARY 

In February 2006, the Dakota, Minnesota & Eastern Railroad Corporation (DM&E) applied 

to the Federal Railroad Administration (FRA) for a $2.33 billion loan under the Railroad 

Rehabilitation and Infrastructure Finance (RRIF) program to finance construction of the 

Powder River Basin (PRB) Expansion Project (Project), which has been previously 

considered in an extensive environmental impact statement (EIS) process and approved by 

the Surface Transportation Board (STB). Approval of a loan for the PRB Project requires 

FRA compliance with the requirements of the National Environmental Policy Act (NEPA), 

Section 4(f) of the Department of Transportation Act, 49 U.S.C. 303(c), and FRA’s 

Environmental Procedures [64 Fed. Reg. 28545, 28522 at §12 (May 6, 1999)], see also 49 

C.F.R. §260.35. 

FRA conducted a review of the EIS for the purpose of adoption pursuant to 40 C.F.R. 1506.3 

and found that the actions encompassed by the DM&E RRIF application are substantially the 

same as the agency actions covered by the STB’s EIS and Supplemental EIS (SEIS), that the 

EIS and SEIS adequately assess the environmental impacts associated with the Project and 

meet the standards of the Council on Environmental Quality (CEQ) NEPA Regulation for an 

adequate statement, and that the EIS and SEIS can be adopted by FRA. In accordance with 

CEQ regulations, FRA published a notice in the Federal Register on August 18, 2006, 

adopting the STB EIS and released a Draft Section 4(f)/303 Statement. FRA is concurrently 

issuing a Record of Decision (ROD) on the EIS with this Section 4(f)/303 Statement. The 

ROD completes the NEPA review process and addresses in detail a number of considerations 

involved in FRA’s environmental review. 

A Section 303 analysis addresses publicly owned land of a public park, recreation area, or 

wildlife and waterfowl refuge of Federal, State, or local significance, or land of a historic site 

of national, state, or local significance that may be used by a proposed project. This 

statement identifies potential qualifying properties, evaluates potential effects on such 

properties in terms of whether there is a use, identifies avoidance alternatives, and, if 

avoidance is not feasible or prudent, identifies mitigation options, which would eliminate or 

reduce the use. 

The PRB Project involves construction of approximately 280 miles of new rail line and 

associated facilities in Wyoming and South Dakota that would provide a third rail competitor 

in the southern portion of the PRB coal production area. Because its existing rail 

infrastructure is inadequate to handle the coal shipments, DM&E proposes as part of the 

Project to rebuild and comprehensively upgrade 598 miles of existing rail line in Minnesota 

and South Dakota, including additional sidings, signaling, grade crossing protections, and 

other system improvements. 

STB is an economic regulatory agency that Congress charged with, among other things, 

approving the entrance and exit of railroads into markets, railroad restructuring transactions 

(mergers, line sales, line construction, line abandonments, and resolving railroad rate and 

service disputes). The STB is an independent decisionmaking body, although it is 

administratively affiliated with the U.S. Department of Transportation (DOT). FRA is an 
 Summary 

Section 303 Statement S-2 January 2007 

operating administration of U.S. DOT and is delegated certain decisionmaking 

responsibilities by the DOT Secretary. FRA is primarily responsible for railroad safety 

regulation and oversight, railroad financial and technical assistance, and policy development. 

No Section 303 properties have been identified on the rail line extension as of this date. 

Various alternative alignments for construction of the new rail line were evaluated by SEA in 

the EIS and the Board selected the alternative that minimized impacts to a broad category of 

resources, including resources protected by Section 303. FRA has reviewed STB’s analysis 

and agrees that STB has selected the alternative that is least likely to involve Section 303 

resources. 

In this Section 4(f)/303 Statement, FRA has concluded that no feasible and prudent 

alternatives exist for the replacement of certain historic railroad bridges on the existing 

DM&E rail line proposed for rehabilitation, including all timber and I-beam bridges, a stone 

arch bridge, stone box culverts, a concrete/I-beam bridge, and cast iron pipe culverts. 

Additionally, it is likely that replacement or substantial modification that would adversely 

affect the historic integrity of numerous historic through-plate girder, deck-plate girder, 

through-truss, and concrete bridges will be required. FRA has concluded that no feasible and 

prudent alternative exists to substantial modification or replacement of these bridges. If 

possible, the structures will be retained and rehabilitated and measures to minimize harm 

may be identified that would maintain the historic condition of a few of these bridges 

resulting in only a de minimis impact, if any use at all. A de minimis impact could also occur 

with the PRB Project to stone arch bridges. FRA has incorporated documentation and 

consultation by STB in this evaluation and is participating in the Programmatic Agreement 

for compliance with the National Historic Preservation Act to ensure that the Project includes 

all possible planning to minimize harm to historic Section 303 resources. 

FRA has identified several temporary uses involving four trails. There are no feasible and 

prudent alternatives to these temporary uses that will occur with construction activity on the 

existing rail line. All possible planning has been incorporated to minimize impacts to the 

four trails. For the Missouri River Trail and the Rochester Bike and Walking Trail, 

connectivity of the trails would remain intact as crossings would be accommodated during 

construction, which is anticipated to take less than 1 day for each trail. For the Cottonwood 

Path, connectivity of the trail would remain intact via a 5,000-foot long trail detour that 

would be in place during construction at the trail crossing (construction at the trail location is 

anticipated to take 32 weeks, however, the trail would experience alternating 4-week closures 

and 4-week openings during the construction period). For the Sakatah Singing Hills State 

Trail, a temporary use would occur only if this alternative is implemented (rather than the 

Southern Mankato Route), and connectivity of the trail would remain as the crossing would 

be accommodated during construction, which would last only 1 or 2 days. 
 Contents 

Section 303 Statement i January 2007 

CONTENTS 

Chapter Page

CHAPTER 1 INTRODUCTION ........................................................................................... 1-1 

1.1 Project History ........................................................................................................... 1-1 

1.2 Proposed FRA Action and Applicability of Section 303........................................... 1-3 

1.2.1 FRA’s Responsibilities Under 49 U.S.C. 303................................................... 1-4 

1.3 Description of Section 303 Properties ....................................................................... 1-5 

1.4 FRA’s Existing Interactions with the DM&E............................................................ 1-5 

CHAPTER 2 COORDINATION........................................................................................... 2-1 

2.1 The STB’s NEPA Process ......................................................................................... 2-1 

2.1.1 Key Events During the EIS Process.................................................................. 2-1 

2.1.2 Overview of the EIS and SEIS.......................................................................... 2-2 

2.2 Section 106 Consultation and Section 303 ................................................................ 2-4 

2.2.1 Agency Coordination........................................................................................ 2-5 

2.2.2 Development of the PA..................................................................................... 2-6 

2.3 STB’s Coordination with Indian Tribes and Section 303.......................................... 2-6 

2.4 Other Stb Coordination Related to Section 303 Properties ....................................... 2-7 

2.4.1 Agency Scoping................................................................................................ 2-7 

2.4.2 Agency Consultations ....................................................................................... 2-8 

2.4.3 Local Coordination ........................................................................................... 2-8 

2.5 STB’s Public Outreach .............................................................................................. 2-8 

2.5.1 Public Involvement Approach and Process ...................................................... 2-8 

2.5.2 DEIS and FEIS Notification ............................................................................. 2-9 

2.5.3 Public Comments Related to Section 303 Properties ..................................... 2-11 

2.5.4 Public Meetings .............................................................................................. 2-11 

2.6 FRA Public Outreach and Coordination.................................................................. 2-12 

CHAPTER 3 PURPOSE AND NEED .................................................................................. 3-1 

3.1 Purpose of the Proposed Action................................................................................. 3-1 

3.2 Need for the Proposed Action.................................................................................... 3-2 

3.2.1 National Energy Policies................................................................................... 3-2 

3.2.2 Increased Energy Demand ................................................................................ 3-3 

3.2.3 Increased Demand for PRB Coal...................................................................... 3-4 

3.2.4 Increase Rail Capacity ...................................................................................... 3-4 

3.2.5 Increased Rail Competition............................................................................... 3-4 

3.2.6 Safe and Reliable Rail Service.......................................................................... 3-5 

3.2.7 Conclusion on Project Need.............................................................................. 3-7 

CHAPTER 4 PROJECT ALTERNATIVES ......................................................................... 4-1 

4.1 Alternatives for the Existing Rail Line Considered by Stb........................................ 4-1 

4.1.1 Summary of Alternatives .................................................................................. 4-1 

4.1.2 Identification of the Preferred Alternative........................................................ 4-1 

4.2 Alternatives Considered for the Rail Line Extension ................................................ 4-2 

4.2.1 Summary of Alternatives .................................................................................. 4-2 

4.2.2 Identification of the Preferred Alternative........................................................ 4-2 

CHAPTER 5 SECTION 303 PROPERTIES......................................................................... 5-1 

5.1 Section 106 Properties Subject to Section 303 .......................................................... 5-1 
 Contents 

Section 303 Statement ii January 2007 

5.1.1 Bridges, Culverts, and Others ........................................................................... 5-1 

5.1.2 Other Eligible Structures................................................................................... 5-3 

5.1.3 Cultural Resources............................................................................................ 5-4 

5.2 Other Section 303 Properties ..................................................................................... 5-5 

CHAPTER 6 USES OF THE SECTION 303 PROPERTIES ............................................... 6-1 

6.1 Section 106 Properties Subject to Section 303 .......................................................... 6-2 

6.1.1 Bridges and Culverts......................................................................................... 6-2 

6.1.2 Other Eligible Structures................................................................................... 6-3 

6.1.3 Cultural Resources............................................................................................ 6-4 

6.2 Other Section 303 Properties ..................................................................................... 6-4 

6.2.1 Recreational Trails............................................................................................ 6-5 

6.2.2 Wildlife Refuges and Parks .............................................................................. 6-6 

CHAPTER 7 AVOIDANCE ALTERNATIVES................................................................... 7-1 

7.1 Section 106 Resources subject to Section 303........................................................... 7-1 

7.1.1 Bridges and Culverts......................................................................................... 7-1 

7.1.2 Other Eligible Structures................................................................................. 7-11 

7.1.3 Cultural Resources.......................................................................................... 7-12 

7.2 Other Section 303 Properties ................................................................................... 7-12 

CHAPTER 8 MEASURES TO MINIMIZE HARM............................................................. 8-1 

8.1 Section 106 Resources Subject to Section 303.......................................................... 8-1 

8.2 Other Section 303 Properties ..................................................................................... 8-2 

8.2.1 Uses................................................................................................................... 8-2 

8.2.2 Proximity Effects .............................................................................................. 8-2 

CHAPTER 9 303 DETERMINATION ................................................................................. 9-1 

CHAPTER 10 REFERENCES ..................................................................................................1 

TABLES

Table Page

Table 2-1. STB Public Notification PRocess........................................................................ 2-9 

Table 6-1. Analysis of Train Impacts on Community Parks Along Other Rail Lines........ 6-10

Table 6-2. Emission Limits for Locomotives Based on Tier (Line-Haul Cycle Standard) 6-13 

 

FIGURES

Figure Follows Page

Figure 1-1. Map of 2003 RRIF Loan Capital Spending ....................................................... 1-6 

Figure 3-1. DM&E Train Accidents ..................................................................................... 3-6 

Figure 3-2. DM&E Track-Caused Accidents ....................................................................... 3-6 

Figure 4-1. STB’s Selected PRB Project Alternative C ....................................................... 4-3 

Figure 7-1. Photo of Typical DM&E Timber Bridge ........................................................... 7-4 

Figure 7-2. Photo of Typical DM&E Through-Truss Bridge............................................... 7-9 

Figure 7-3. Photo of Typical DM&E Stone Arch Bridge................................................... 7-11 
 Contents 

Section 303 Statement iii January 2007 

APPENDICES

Appendix A Environmental Conditions, Surface Transportation Board 2006 Decision 

Appendix B Programmatic Agreement 

Appendix C Chapters 3 and 4 from the Final Environmental Impact Statement for the 

Powder River Basin Expansion Project 

Appendix D Bridges and Historic Structures List 

Appendix E Other Section 303 Properties List 

Appendix F DM&E Bridge Alternatives Evaluation 

Appendix G Department of Interior Comment Letter
 Acronyms and Abbreviations 

Section 303 Statement iv January 2007 

ACRONYMS AND ABBREVIATIONS 

AAOR average annual operating revenues 

ACHP Advisory Council on Historic Preservation 

AREMA American Railway and Engineering Maintenance of Way Association 

BLM Bureau of Land Management 

BNSF BNSF Railway Company 

Board Surface Transportation Board 

BOR Bureau of Reclamation 

CAAA Clean Air Act Amendments 

CEQ Council on Environmental Quality 

C&NW Chicago and North Western Railroad Company 

CFR Code of Federal Regulations 

CO carbon monoxide 

COE Corps of Engineers 

DEIS draft environmental impact statement 

DM&E Dakota, Minnesota & Eastern Railroad Corporation 

DOE U.S. Department of Energy 

DOI U.S. Department of Interior 

DOT U.S. Department of Transportation 

EEI Edison Electric Institute 

EIA Energy Information Administration 

EIS environmental impact statement 

EPA U.S. Environmental Protection Agency 

Fed. Reg. Federal Register 

FEIS final environmental impact statement 

FHWA Federal Highway Administration 

FRA Federal Railroad Administration 

IC&E Iowa, Chicago & Eastern Railroad 

IMRL I&M Rail Link 

LWCA Land and Water Conservation Fund Act of 1965 

MOA Memorandum of Agreement 

NEPA National Environmental Policy Act 

NHMC non-methane hydrocarbons 

NHPA National Historic Preservation Act 

NOx nitrogen oxides 

NRHP National Register of Historic Places 

PA Programmatic Agreement 

PM particulate matter 

ppm parts per million 

PRB Powder River Basin 

Project Powder River Basin Expansion Project 

Proposed Action Powder River Basin Expansion Project 

RARE II Roadless Area Review and Evaluation 

RRIF Railroad Rehabilitation and Infrastructure Finance 
 Acronyms and Abbreviations 

Section 303 Statement v January 2007 

SAFETEA-LU Safe, Accountable, Flexible, and Efficient Transportation Equity Act: 

A Legacy for Users 

SEA Section of Environmental Analysis 

SEIS supplemental environmental impact statement 

SHPO State Historic Preservation Officer 

SO2 sulfur dioxide 

STB Surface Transportation Board 

TCP traditional cultural properties 

THC total hydrocarbons 

THE total hydrocarbon equivalents 

USC Unites States Code 

USFS U.S. Forest Service 

USFWS U.S. Fish and Wildlife Service 

UP Union Pacific Railroad Company
 Introduction 

Section 303 Statement 1-1 January 2007 

CHAPTER 1 

INTRODUCTION 

1.1 PROJECT HISTORY 

The Powder River Basin (PRB) of Wyoming and Montana holds the single largest 

concentration of coal reserves in the United States. The coal is prized because of the ease 

and low cost of production, and its relatively low sulfur content helps utilities meet Clean Air 

Act requirements. 

Serious development of these coal reserves did not begin until the mid-1970s with the 

construction of the so-called Joint Line between Douglas and North Antelope, Wyoming, by 

the Burlington Northern Railroad (since merged into BNSF) and the early 1980s when the 

Chicago & North Western Railroad (C&NW) (since merged into Union Pacific Railroad or 

UP)1 paid for its share of the Joint Line and constructed a connection between the Joint Line 

and the UP’s North Platte line at South Morrill, Nebraska. Today the BNSF and the UP 

operate over a roughly 100-mile Joint Line in the southern PRB in Wyoming, from south of 

Gillette to Shawnee Junction. While UP can only move coal out of the PRB from the south, 

BNSF also has outlet routes on the north and east. 

Over the past 10 years, demand for PRB coal has grown by more than 59 percent from 204 

million tons produced annually in 1996 to 325 million tons today.2

 To accommodate this 

tonnage, the two carriers originate around 130 trains per day. Due to the increased demand, 

the two carriers have expanded capacity on the Joint Line going from one to two tracks and 

from two tracks to nearly 60 miles of triple track. Demand for PRB coal is expected to 

continue to grow, and more expansion is planned. 

The Dakota, Minnesota & Eastern Railroad Corporation (DM&E) was created in 1986, 

formed from rail lines the C&NW was attempting to abandon. The current DM&E system 

includes approximately 700 miles of east-west main line track across southern and central 

South Dakota and southern Minnesota. It also consists of several hundred miles of secondary 

track extending off the rail line into northwestern Nebraska, northern Iowa, and other areas of 

South Dakota and Minnesota (Figure 1-1). It has the ability to interchange traffic with all of 

the seven Class I railroads operating in the United States and Canada. The DM&E operates 

with approximately 1,000 employees, 9,000 rail cars, and 150 locomotives. 

 1

 The Union Pacific Corporation acquired the C&NW in 1995. 

2

 Submission of Union Pacific Railroad Company, STB Ex Parte No. 657 (Sub-No.1), Major Issues in 

Rail Rate Cases, p. 8, May 1 2006. 
 Introduction 

Section 303 Statement 1-2 January 2007 

DM&E is a Class II railroad,3 the primary rail transportation provider for most of South 

Dakota, and the only east-west railroad in southern Minnesota. The DM&E transports 

approximately 78,000 carloads annually, consisting primarily of grain and grain products, 

bentonite, kaolin clay, fertilizers, metal products, cement, and paper and wood products. The 

rail service it provides to agricultural shippers in its service area is an important component 

of the rural agricultural economies of South Dakota and Minnesota. 

By application filed February 20, 1998, DM&E sought authority from the Surface 

Transportation Board (STB or Board) under 49 U.S.C. 10901 to construct and operate its 

proposed PRB Expansion Project (Project), approximately 280 miles of new rail line and 

associated facilities in Wyoming and South Dakota that would provide a third rail competitor 

in the southern portion of the PRB coal production area. Because its existing rail 

infrastructure was inadequate to handle the volumes of coal expected and needed to make the 

project viable, DM&E indicated its plans to rebuild and comprehensively upgrade 598 miles 

of its existing rail line in Minnesota and South Dakota to provide the infrastructure necessary 

to accommodate the anticipated level of coal traffic. Rebuilding and upgrading these existing 

lines would include additional sidings, signaling, grade crossing protections, and other 

system improvements. 

On December 10, 1998, the Board issued a decision finding that the project satisfied the 

transportation-related requirements of 49 U.S.C. 10901. The Board also indicated that, at the 

conclusion of the environmental review process, it would issue another decision on the entire 

proposed project, assessing the potential environmental impacts and the cost of any 

environmental mitigation that was imposed. 

The STB’s Section of Environmental Analysis (SEA) issued a Draft Environmental Impact 

Statement (DEIS) for the Project on September 27, 2000, and a Final Environmental Impact 

Statement (FEIS) on November 19, 2001. STB issued a decision approving the proposed 

project, with conditions, on January 30, 2002. Following litigation challenging the January 

2002 Decision, the 8th Circuit Court of Appeals partially remanded the case back to the STB 

on four issues. See Mid States Coalition for Progress v. Surface Transportation Board, 345 

F.3d 520 (8th Cir. 2003). STB subsequently issued a Draft Supplemental EIS (SEIS) on 

April 15, 2005, and a Final SEIS on December 30, 2005. On February 15, 2006, the STB 

issued a decision again approving the proposed project, subject to extensive environmental 

conditions, including 147 mitigation conditions and an environmental oversight period, 

addressing both short-term (construction-related) impacts and impacts related to long-term 

operation of unit coal trains and requiring the use of environmentally preferable routes. 

Following a further challenge to the STB’s February 15, 2006 decision, the 8th Circuit Court 

of Appeals affirmed the decision on December 28th, 2006. See Mayo Foundation v. Surface 

Transportation Board, United States of America, 472 F.3d 545 (8th Cir. 2006). All of the 

environmental documents issued by STB are available on the STB’s Web site at: 

 3

 STB defines a Class II railroad in 2006 as having operating revenues between $25.5 and $319.2 

million based on results for 2005. These thresholds are adjusted annually according to the Railroad 

Freight Rate Index published by the Bureau of Labor Statistics. 
 Introduction 

Section 303 Statement 1-3 January 2007 

[http://www.stb.dot.gov/stb/environment/key_cases_dme.html] or through a link on the 

FRA’s Web site (http://www.fra.dot.gov) through Freight Railroad/Environment. 

At the time DM&E was formed, its rail infrastructure was generally in poor condition and 

remained so until recent improvement. In 2003, DM&E received a Railroad Rehabilitation 

and Infrastructure Finance (RRIF) loan from FRA in the amount of $233 million to refinance 

existing debt, primarily resulting from its acquisition of the rail assets of the former I&M 

Rail Link (IMRL) to form the Iowa, Chicago & Eastern Railroad (IC&E), and to make 

repairs and improvements to both DM&E and IC&E lines. The IC&E was formed as a 

wholly owned subsidiary of the DM&E in 2002 and now provides transportation services to 

approximately 300 on-line customers along approximately 1,400 route-miles in a 5 State 

region (Iowa, Minnesota, Missouri, Illinois, Wisconsin). The IC&E transports over 176,000 

carloads annually, consisting primarily of grain and grain products, coal, metal products, 

cement, chemicals, fertilizers, and lumber and paper products. In 2005, 20,000 cars flowed 

between the two systems, extending the haul of commodities by DM&E that were formerly 

handed off to other rail carriers. 

The application to the STB for the Project occurred before the acquisition of the IC&E. In 

2003, when approving the asset purchase and ownership of the IC&E4

, STB imposed a 

condition precluding DM&E from handling any traffic moving to or from the line approved 

in consideration of the PRB Project over what are now IC&E lines until an appropriate 

environmental review has been conducted in the IC&E/IMRL asset acquisition proceeding. 

As STB explained in the IC&E/IMRL Asset Acquisition decision served July 22, 2002 (slip 

op. at 16-17), the new environmental inquiry will be initiated when DM&E notifies the STB 

that it has begun construction of the new line and provides STB with additional necessary 

traffic and environmental information. Recently, the DM&E requested that the STB expedite 

consideration of DM&E’s proposal to run future Project coal trains over the IC&E, although 

construction has not yet begun on the new line. 

1.2 PROPOSED FRA ACTION AND APPLICABILITY OF SECTION 303 

In February 2006, DM&E applied to FRA for a $2.33 billion loan under the RRIF program to 

finance construction of the PRB Project, which requires FRA compliance with the 

requirements of the National Environmental Policy Act (NEPA), Section 4(f) of the 

Department of Transportation Act, 49 U.S.C. 303(c), and FRA’s Environmental Procedures 

[64 Fed. Reg. 28545, 28522 at §12 (May 6, 1999)], see also 49 C.F.R. §260.35. 

Amendments to the RRIF program adopted in Section 9003 of the Safe, Accountable, 

Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. No. 109-59, 119 

Stat 1144) expanded the size and scope of the RRIF program, thus the viability of 

applications such as that made by the DM&E for the Project. 

FRA conducted a review of the EIS for the purpose of adoption pursuant to 40 C.F.R. 1506.3 

and found that the actions encompassed by the DM&E RRIF application are substantially the 

same as the actions covered by the STB’s EIS and SEIS, that the EIS and SEIS adequately 

 4

 STB Finance Docket No. 34178, Decision No. 7, January 31, 2003, Service Date February 3, 2003. 
 Introduction 

Section 303 Statement 1-4 January 2007 

assess the environmental impacts associated with the Project and meet the standards of the 

Council on Environmental Quality (CEQ) NEPA Regulation (40 C.F.R. Part 1500-1508) for 

an adequate statement, and that the EIS and SEIS can be adopted by FRA. CEQ’s 

regulations implementing NEPA strongly encourage agencies to reduce paperwork and 

duplication. One of the methods identified by CEQ to accomplish this goal is adopting the 

environmental documents prepared by other agencies in appropriate circumstances (40 

C.F.R. §1500.4(n)). In accordance with CEQ regulations, FRA published a notice in the 

Federal Register on August 18, 2006, adopting the STB EIS concurrent with the release of 

the Draft Section 4(f)/303 Statement. 

Because the STB’s EIS for the project did not include a Section 4(f) evaluation, FRA, with 

assistance from an independent contractor, has conducted its own separate Section 4(f) 

analysis and prepared this Statement consistent with FRA procedures. While adopting the 

STB EIS and issuing a 4(f)/303 Statement, FRA also joined, as a concurring party, the March 

2003 Programmatic Agreement (PA), which was developed and executed for the Project by 

STB, DM&E, the Advisory Council on Historic Preservation (ACHP), and State Historic 

Preservation Officers (SHPO) in the affected States to coordinate additional evaluation and 

consultation regarding historic and cultural resources under Section 106 of the National 

Historic Preservation Act (NHPA). By joining as a concurring party, FRA is better able to 

require DM&E to comply with the PA as a loan condition should FRA approve the loan and 

can address the Section 4(f)/303 requirements related to assuring that all possible planning to 

minimize harm is achieved. 

1.2.1 FRA’s Responsibilities Under 49 U.S.C. 303. 

Section 303 properties have commonly been referred to as “4(f) resources” in the past, which 

was a reference to the original section of Department of Transportation Act of 1966, as 

enacted, at which this mandate was found. (This portion the United States Code has 

subsequently been recodified at 49 U.S.C. 303.) For the purposes of this document, Section 

303 and Section 4(f) resources are considered the same. 

The Department of Transportation Act was enacted 3 years before NEPA, and Section 4(f) 

has many similarities to but is not exactly the same as the requirements of Section 102 (c) of 

NEPA. While NEPA applies to all Federal departments and agencies, Section 4(f) (Section 

303) applies only to actions by the Secretary of Transportation. Normally, when an agency 

of the Department of Transportation (DOT) such as FRA undertakes environmental reviews 

of proposed actions, the review requirements of both NEPA and Section 303 are covered by 

the same documentation. The STB, however, is not subject to Section 303 since its 

relationship to the DOT is only for administrative efficiency and the Secretary has no 

authority to review or alter decisions of the Board. Thus, when STB prepared the EIS and 

SEIS on the DM&E Project, these documents did not specifically address the requirements of 

Section 303. However, STB was cognizant of the impacts the project might have on 

resources that are also covered by Section 303. 

This document provides the necessary Section 303 analysis for compliance with the 

Department of Transportation Act of 1966. The information supplied for this Section 303 
 Introduction 

Section 303 Statement 1-5 January 2007 

analysis was prepared in accordance with 49 U.S.C. 303 and FRA Procedures for 

Considering Environmental Impacts (64 Fed. Reg. 28545, 28552, §12, May 26, 1999), 

Section 12. It discusses the impacts that the proposed PRB Project would have on properties 

protected by Section 303. 

A Section 303 analysis consists of identification of potential qualifying properties, evaluation 

of potential effects on such properties in terms of whether there is a use, identification of 

avoidance alternatives, and, if avoidance is not feasible or prudent, identification of 

mitigation options, which would eliminate or reduce the use. 

1.3 DESCRIPTION OF SECTION 303 PROPERTIES 

Section 303 applies to “...the use of publicly owned land of a public park, recreation area, or 

wildlife and waterfowl refuge of national, State or local significance, or land of a historic site 

of national, State or local significance...” 

The Secretary of Transportation may only approve a program or project which uses such land 

if: 

• There is no prudent and feasible alternative to using that land. 

• The program or project includes all possible planning to minimize harm to the 

park, recreation area, wildlife and waterfowl refuge, or historic site resulting from 

the use. 

1.4 FRA’S EXISTING INTERACTIONS WITH THE DM&E 

In 2003, FRA made an initial RRIF loan to the DM&E to refinance existing debt, to acquire 

the rail assets of the former IMRL by DM&E’s subsidiary the IC&E, and to make repairs and 

improvements to both DM&E and IC&E lines. 

A premise of the 2003 RRIF loan was to integrate DM&E and IC&E operations for the 

interchange of traffic. DM&E has realized infrastructure improvements over portions of its 

system in the past 2 years as a result of the 2003 RRIF loan. Approximately 135 miles of the 

combined DM&E/IC&E’s 2,500-mile system was relayed with new 136-pound rails, 440,000 

ties were installed, and a large quantity of bridge repairs and track surfacing was 

accomplished with the 2003 RRIF loan. The following map shows that the bulk of the 2003 

RRIF loan funding was spent between Huron, South Dakota, and Marquette, Iowa. To date, 

the DM&E has met all investment obligations committed to with the 2003 RRIF loan. 
 Introduction 

Section 303 Statement 1-6 January 2007 

Figure 1-1. Map of 2003 RRIF Loan Capital Spending 

The DM&E targeted the 2003 RRIF loan capital work to critical infrastructure problem areas 

that generated the strongest financial return, leaving many other areas of the DM&E system 

for future resolution. In addition, a portion of the DM&E’s cash flow freed up by the debt 

refinancing was committed to making additional capital improvements to the infrastructure. 

In response to several track derailments and employee injuries between April 2004 and 

August 2005, FRA initiated a series of systemwide, onsite inspections to determine the level 

of DM&E’s compliance with FRA safety regulations regarding Railroad Operating Rules and 

Federal Track Safety Standards. FRA also completed bridge evaluations to determine if 

DM&E’s bridge inspection and management practices met the recommendations in FRA’s 

Bridge Policy. FRA identified deficiencies in a number of areas. Throughout the process, 

FRA and DM&E maintained an active and open dialogue. FRA and DM&E entered into an 

October 18, 2005 Safety Compliance Agreement that identifies corrective actions in detail. 

This agreement remains in effect as of this date. 

At the date of this statement, currently pending before FRA is a second RRIF loan 

application from DM&E for approximately $48.3 million for the purpose of rehabilitating 

134 miles of the DM&E’s existing line west of Wall, South Dakota, to Colony, Wyoming 

(West End Project). This loan has been approved, but the loan documents have not yet been 

negotiated. This line is located on the far west system serving the communities of Box Elder, 

Rapid City, Sturgis, Whitewood, Belle Fourche, St. Onge in South Dakota, and Colony. The 

primary purpose of the second loan is to enhance and revitalize service and operational safety 

of the DM&E west of Wall, South Dakota, which is independent of the Project coal train 

operations. The funds would be devoted to installing welded rail and turnouts, replacing ties, 
 Introduction 

Section 303 Statement 1-7 January 2007 

surfacing track, repairing bridges, restoring drainage systems, and addressing related deferred 

maintenance types of activities. This line primarily serves existing shippers that transport 

Bentonite (a clay used as a well drilling lubricant, the clumping agent in kitty litter, and for 

other industrial purposes) and grain. The line is not anticipated to carry coal traffic as the 

line terminates at Colony, Wyoming, and does not connect to any other railroads. The 

purpose of the project would be to improve service to existing shippers and to improve the 

safety of DM&E’s operations through upgraded facilities. FRA evaluated the environmental 

impacts of the West End Project separately (the West End Project is covered by a categorical 

exclusion under FRA’s environmental standards), and no Section 303 uses were identified. 

FRA concluded that the PRB Project and the West End Project had independent utility since 

neither project was dependent upon the other and the need for each was justified separately 

from the other. 
 Coordination 

Section 303 Statement 2-1 January 2007 

CHAPTER 2 

COORDINATION 

This chapter identifies coordination that occurred during other review processes that 

preceded this analysis; it also summarizes the proposed FRA action, which triggered the 

Section 303 analysis. During the STB’s NEPA process and Section 106 of the NHPA 

consultation, substantial consideration of impacts, avoidance, and mitigation of resources, 

such as public parks, wildlife refuges, wildlife management areas, and significant cultural 

(historic) resources, occurred, and related changes were made in DM&E’s plans. The NEPA 

process and Section 106 entailed both coordination and consultation with jurisdictional 

agencies, local governments, Tribal representatives, and SHPOs throughout the 8 years that 

the process was underway. 

2.1 THE STB’S NEPA PROCESS 

Consistent with STB’s approach in similar cases, an EIS was prepared by SEA with the 

participation of five cooperating Federal agencies (U.S. Department of Agriculture, U.S. 

Forest Service (USFS), U.S. Army Corps of Engineers (COE), Omaha and St. Paul Districts, 

U.S. Department of Interior (DOI) Bureau of Land Management (BLM) and Bureau of 

Reclamation (BOR), and U.S. Coast Guard) (see 40 CFR 1501.6). The EIS addressed the 

potential environmental impacts resulting from increased rail operations over the portion of 

DM&E’s line to be rebuilt, as well as the impacts from the construction of the new rail line 

itself. Thus, the environmental record for this Project addresses the rehabilitation, upgrade, 

and increased use of DM&E’s existing line, as well as the construction and operation of the 

proposed new line. 

The STB’s EIS also included a detailed evaluation of effects on publicly owned lands, 

including public parks, recreation areas, wildlife refuges, and historic and cultural resources. 

This Section 4(f)/303 Statement discusses Section 303 Properties in Chapter 5 and uses of 

Section 303 Properties in Chapter 6. 

2.1.1 Key Events During the EIS Process 

The following summarizes some of the key events during the EIS process for the Proposed 

Action: 

y April–July 1998–Agency, Tribal, and interested party scoping meetings for the 

EIS. 

y June 1998–Draft Scope of Study for EIS published in the Federal Register. 

y January 1999–Several communities propose bypasses (City of Rochester, 

Minnesota; Owatonna, Minnesota; Brookings, South Dakota; and Pierre, South 

Dakota (a bypass of Mankato was proposed as part of the Proposed Action)). 

y March 1999–Final Scope of Study for EIS released. 
 Coordination 

Section 303 Statement 2-2 January 2007 

y September 2000–DEIS issued. 

y September–March 2000–Comment period (12 public meetings and 8,600 written 

comments received). 

y November 2001–FEIS issued (including response to comments on DEIS). 

y January 2002–STB issues decision. 

y October 2003–8th Circuit Court of Appeals remand. 

y April 2005–Draft SEIS issued. 

y December 2005–Final SEIS issued. 

y February 2006–STB issues decision approving project, subject to mitigation 

conditions. 

y December 2006–8th Circuit Court of Appeals affirms STB 2006 decision. 

2.1.2 Overview of the EIS and SEIS 

In preparing the EIS, SEA obtained extensive public input from a broad range of interests 

that include Federal, State, and local agencies; various interest groups; affected communities; 

Native American Tribes; and members of the general public, largely from the States of 

Minnesota, South Dakota, and Wyoming, but also from locations throughout the United 

States. Their concerns included the potential for safety impacts (including emergency 

vehicle access); noise/vibration increases; property value decreases; impacts to air quality, 

wildlife and threatened and endangered species, water resources, and land use; effects on 

cultural resources and Tribal traditions; paleontological resource impacts; environmental 

justice communities; and general quality-of-life issues. Input also included issues related to 

public parks, recreation areas, wildlife refuges, and wildlife management areas. 

To account for anticipated growth in traffic as DM&E’s proposed access to the southern PRB 

was implemented and the railroad developed its customer base, SEA evaluated potential 

environmental impacts for 3 levels of projected rail operations: 20 million tons of coal 

transported annually (4 loaded and 4 empty coal trains per day), 50 million tons (9 loaded 

and 9 empty coal trains per day), and 100 million tons (17 loaded and 17 empty coal trains 

per day). SEA also examined various alternatives to DM&E’s proposal, including bypasses 

sought by Rochester, Minnesota, and Brookings and Pierre, South Dakota, to route coal 

trains away from those communities. 

SEA’s indepth environmental review of the various project components included: 

y Independent studies supporting the EIS included: preparing biological surveys for 

threatened and endangered species; cultural resource investigations for 

archaeological sites and historic resources; compiling data and studying potential 

effects on safety, including grade crossing safety and potential traffic delays; air 

quality (including visibility); railroad and vehicular traffic volumes; wetlands and 

aquatic resources; noise; wildlife migration; geological resources and soils; and 

potential impacts to ranches, farms, and communities, including environmental 
 Coordination 

Section 303 Statement 2-3 January 2007 

justice concerns associated with construction of approximately 280 miles of new 

rail line and upgrading 600 miles of existing rail line. In conducting its 

environmental analysis, SEA was assisted by several agencies with technical 

expertise, including the five cooperating agencies. These agencies participated in 

the development of the DEIS, including the preliminary recommended mitigation. 

y Independent analysis of potential project impacts related to operational increases 

in rail traffic including safety (such as grade crossing safety, potential vehicular 

delays, and emergency vehicle response); noise impacts on adjacent noise 

sensitive properties, including historic properties; air quality impacts, including 

effects on visibility impairment at national parks and wilderness areas; 

construction-related impacts to safety, land use, biological resources, water 

resources, geology, and soils; and issues related to socioeconomics, hazardous 

materials, transportation systems, cultural and historic resources, environmental 

justice, and cumulative effects. 

In conducting its environmental analysis for the DEIS, SEA considered a wide variety of 

stakeholder interests. These included the SHPOs and other local, State, and Federal 

government agencies with jurisdiction; community organizations; Tribes; homeowners; 

farmers and ranchers; and special stakeholder groups interested in resources affected by this 

project (such as Thunder Basin National Grasslands in Wyoming and Buffalo Gap National 

Grasslands in South Dakota through which the proposed line would pass). 

The SEA also conducted appropriate technical analyses and studies, consultations, and site 

visits and gathered extensive data. As explained in the DEIS, DM&E’s existing system in 

Minnesota and South Dakota was never designed for the volumes and weight of the traffic 

anticipated and had been primarily maintained as an FRA Class I track (maximum allowable 

speed of 10 miles per hour) for many years. Those portions of the DM&E that would be 

used by the new coal traffic would need to be significantly upgraded to allow the operation of 

unit coal trains. Consequently, the increase in the number of trains operating on the existing 

system (from approximately 2 to 9 trains per day to a highest level of anticipated traffic of 37 

total––including coal and freight—trains per day) and the impacts caused by construction and 

operation of approximately 280 miles of new rail line through generally undeveloped rural 

areas could have significant environmental consequences. 

Accordingly, the EIS recommended, and STB subsequently imposed, substantial mitigation 

(147 conditions in all, along with an environmental oversight period) to reduce or eliminate 

many of the potentially significant adverse environmental impacts along with estimated costs 

for the imposed environmental mitigation. The EIS also addressed which routing alternatives 

would be environmentally preferable (see DEIS Chapter 4, Project Alternatives). 

As provided for in its environmental procedures, STB thoroughly reviewed the EIS and, with 

exceptions outlined in the decision, concurred in all of SEA’s analysis and recommendations. 

Thus, the STB imposed conditions on approval of the construction of DM&E’s new line that 

would require DM&E to use environmentally preferable routings and to comply with the 

other mitigation measures identified in the FEIS. 
 Coordination 

Section 303 Statement 2-4 January 2007 

Several concerned citizens, stakeholder groups, and one municipality opposed to the Project 

filed a lawsuit in the U.S. Court of Appeals for the 8th Circuit (court) to challenge the STB’s 

2002 Decision on a variety of grounds. On October 2, 2003, the court issued its decision, 

applauding STB for its “highly commendable and professional job in evaluating an 

enormously complex proposal.” Mid States Coalition for Progress v. Surface Transportation 

Board, 345 F.3d 520, 556 (8th Cir. 2003). Nevertheless, the court remanded the case back to 

STB to address and clarify four issues. First, the court indicated STB needed to consider any 

effects that might occur as a result of the reasonably foreseeable increase in coal 

consumption. A second issue on remand related to whether STB satisfied the requirements 

of Section 106 of the NHPA. While the court upheld the STB’s use of the PA, explaining 

that such an agreement “gives an agency flexibility when ‘effects on historic properties 

cannot be fully determined prior to approval of an undertaking,’” the court indicated that the 

PA had not yet been finalized and executed at the time of the 2002 Decision. Id. at 555. 

Additionally, the court indicated that STB needed to consider the potential synergistic effects 

of noise and vibration, as well as more thoroughly explain its rationale for not including 

mitigation for horn noise. 

On April 15, 2005, SEA issued a Draft SEIS addressing the four remanded issues for public 

comment. It addressed the potential increased coal usage and related air emissions that could 

result, whether mitigation for increased horn noise was warranted, and the relationship 

between vibration and horn noise––issues that STB clarified based on the judicial decision. 

The STB also noted that the PA had been executed. SEA issued the Final SEIS on December 

30, 2005, in which it responded to the comments received on its analysis in the Draft SEIS. 

On February 15, 2006, STB issued a decision again approving the proposed project, subject 

to the 147 mitigation conditions and an environmental oversight period. The environmental 

conditions identified in the STB 2006 Decision are provided in Appendix A. Following a 

further challenge to the STB’s February 15, 2006 decision, the 8th Circuit Court of Appeals 

affirmed the STB’s decision on December 28, 2006 (Mayo Foundation v. Surface 

Transportation Board; United States of America, 472 F.3d 545 (8th Circuit, 2006). The 

Court reached four conclusions in its opinion: (1) the DM&E’s acquisition of the IMRL did 

not constitute significant new circumstances that would give rise to the consideration of this 

new line as an alternative to routing trains through Rochester, MN; (2) STB could reasonably 

require mitigation for wayside noise, but not for horn noise; (3) rejection of sound walls for 

certain locations along the existing rail line was not arbitrary and capricious; and (4) STB 

more than adequately considered the reasonably foreseeable significant adverse effects of 

increased coal consumption on the human environment. 

2.2 SECTION 106 CONSULTATION AND SECTION 303 

Section 106 of the NHPA requires Federal agencies to determine whether their undertakings 

will have adverse effects on historic properties that are on or eligible for listing in the 

National Register of Historic Places (NRHP) and to afford the ACHP a reasonable 

opportunity to comment. Section 106 resources include historic structures and cultural 

resource sites that are on or eligible for the NRHP, traditional cultural properties (TCPs), 

national landmarks, and national monuments. Section 106 resources identified for this 
 Coordination 

Section 303 Statement 2-5 January 2007 

Project are historic railroad bridges and culverts, historic structures adjacent to or near the 

rail line, cultural resource sites (archaeological sites), and TCPs of Native American Indian 

Tribes. 

The SEA conducted an extensive Section 106 consultation that led to the identification of 

potentially effected historic sites and the development and execution of a Section 106 PA for 

the Project by STB, the other cooperating Federal agencies, a number of tribes, the DM&E, 

the ACHP, and SHPOs in the affected States to coordinate additional evaluation and 

consultation regarding historic and cultural resources. FRA has joined this PA as a 

concurring party and has relied upon the STB’s past consultation to identify historic sites 

subject to Section 303. FRA’s efforts to identify other non-historic uses that are subject to 

Section 303, such as parks and recreation areas, are addressed below. 

2.2.1 Agency Coordination 

Consultation pertaining to Section 303 resources occurred as a result of the STB’s Section 

106 consultation process. The following agencies were engaged in Section 106 consultation 

that pertained to resources that are also covered by Section 303: 

y ACHP 

y Minnesota SHPO 

y South Dakota SHPO 

y Wyoming SHPO 

y U.S.D.A. Forest Service, Region 2 

y DOI BLM, Montana/Dakotas State Office 

y DOI BLM, Wyoming State Office 

y DOI BOR 

y COE, Omaha District 

y COE, St. Paul District 

Coordination and consultation occurred with the above agencies beginning in April 1998, 

covering virtually every aspect of the identification and evaluation of Section 106 properties 

(and other public recreational areas and trails, and refuges), as well as the adverse effects on 

Section 106 properties and avoidance/mitigation measures. Agency personnel were invited 

to participate in the fieldwork and surveys to identify and evaluate historic, cultural, 

archaeological, and recreational resources, as well as to comment on the development of 

specific work plans regarding the same. The above agencies received and commented on 

draft reports and negotiated the terms of the PA, as explained more fully below. In short, all 

of the above agencies participated in detailed and extensive Section 106 coordination and 

consultation from 1998 through 2003. 
 Coordination 

Section 303 Statement 2-6 January 2007 

2.2.2 Development of the PA 

A PA was developed among the lead and cooperating agencies, the ACHP, Native American 

Tribes and Tribal entities, the SHPOs (Minnesota, South Dakota, and Wyoming), and DM&E 

covering identification, avoidance, and mitigation efforts for cultural resources along the 

preferred alignment, evaluation of cultural resources, recordation, or mitigation of effects on 

cultural resources and procedures for coordination/consultation with agencies (Federal and 

State) and Tribes. The PA was finalized in May 2003. See Appendix B. 

The PA identifies requirements, procedures, and actions that must be complied with relative 

to identification of eligible resources, determination of effects, development of treatment 

plans (including considerations for avoidance and, if avoidance is not feasible and prudent, 

mitigation), documentation, and public involvement to satisfy Section 106 NHPA 

requirements. 

2.3 STB’S COORDINATION WITH INDIAN TRIBES AND SECTION 303 

TCPs may be eligible under Section 106 and thus are potential Section 303 properties. Early 

in the environmental review process, SEA initiated government-to-government consultations 

with Federally recognized Tribes with historic, aboriginal, or current ties to the project area 

that might have an interest in the proposed PRB Project. SEA identified these Tribes with 

the assistance of the cooperating Federal agencies, State Historic Preservation Offices, and 

the Bureau of Indian Affairs through recommendations of individual Tribes and by applying 

Federal regulations. In identifying potentially affected Tribes and in conducting its analysis 

of potential impacts to Tribal lands, SEA applied the following Acts: 

y The NHPA 

y The American Indian Religious Freedom Act 

y The Native American Graves Protection and Repatriation Act 

To ensure that each Tribe would be as involved as it wished to be in the environmental 

review process, SEA conducted tailored outreach to each identified Tribe. SEA’s outreach to 

Tribes is presented in Appendix D of the DEIS, “Environmental Justice Methodology and 

Outreach.” 

All Tribes were invited to participate in the DEIS comment process by attending and 

speaking at public meetings and offering written comments. SEA hosted two Tribal 

consultation meetings prior to release of the DEIS (which included a Draft PA for agency, 

Tribal, and public review and comment) followed by a 3-day meeting on the Rosebud 

Reservation to afford affected and interested Tribal members an additional opportunity to ask 

questions and provide comments on the DEIS during the comment period following release 

of the DEIS. At the Rosebud meeting, 70 Tribal members spoke and more attended. The 

Board posted the transcript of this meeting, and all of its other public meeting transcripts for 

the DEIS, on the Board’s Web site at http://www.stb.dot.gov. 
 Coordination 

Section 303 Statement 2-7 January 2007 

During these government-to-government consultations, SEA, the participating Tribes, 

cooperating agencies, SHPOs, and organizations developed a PA and Identification Plan, 

included in Appendix G of the FEIS. The PA and Identification Plan ensure opportunities for 

Tribal participation in efforts relating to identification, avoidance, and mitigation of historic 

and cultural resources under Section 106 of the NHPA. 

SEA and the Tribes, working with DM&E, also developed a Memorandum of Agreement 

(MOA) (Appendix F to the STB’s FEIS). This agreement was developed at the request of 

and with the assistance of representatives of consulting Tribes and Indian organizations. It 

was designed to ensure Tribal participation and consideration throughout the NEPA process 

and project development, particularly in specific areas of concern to the Tribes, including 

TCPs (sacred sites used for religious ceremonies, areas of special importance due to events of 

history, and areas of interest due to collection of plants used for tribal ceremonies). The 

MOA was also developed to obtain the written commitment of DM&E to address Tribal 

issues of concern. The MOA was a part of the NEPA process rather than the Section 106 

process. STB has made compliance with the MOA a condition of the project approval (see 

STB Condition 107). 

In its 2002 and 2006 Decisions, the Board imposed conditions affording the Tribes ongoing 

participation in the implementation of this project. In addition, the PA and Identification 

Plan, as well as the MOA, have been circulated to the Tribes for signature. Regardless of 

whether they choose to sign those documents, the Board imposed conditions requiring 

DM&E to comply with these documents, which address cultural resource and other issues of 

concern to the Tribes, as part of its 2006 Decision approving the project. 

2.4 OTHER STB COORDINATION RELATED TO SECTION 303 PROPERTIES 

As part of the NEPA process, specific Section 303 properties and related issues were 

discussed and evaluated, though not in the specific context of Section 303, which was not 

applicable to the STB’s review process. Section 303 properties identified for this Project 

were wildlife and waterfowl refuges, Federal, State and local public parks, and public 

recreational trails. The following provides a summary of this coordination and the outcome 

of those discussions. 

2.4.1 Agency Scoping 

Prior to issuing the DEIS, SEA engaged the public and governmental agencies in an 

extensive scoping process. The DEIS has details of the scoping process in Chapter 1, 

“Scoping and Public Involvement,” and copies of scoping materials in Appendices B and C, 

“Agency Correspondence,” and “Scoping and Outreach Materials.” The scoping process is 

also summarized in the DEIS Executive Summary. 

During scoping, agencies such as the National Park Service, U.S. Fish and Wildlife Service, 

Minnesota Department of Natural Resources, South Dakota Game, Fish, and Parks, and local 

cities provided comments related to waterfowl production areas, recreation areas, and 

community parks, which were noted and subsequently addressed in the DEIS and FEIS. 
 Coordination 

Section 303 Statement 2-8 January 2007 

2.4.2 Agency Consultations 

Throughout the environmental review process, SEA extensively consulted with other 

agencies. As discussed throughout the FEIS, SEA participated with five cooperating 

agencies on the environmental analysis reported in the DEIS and FEIS; SEA has also 

consulted with many other Federal, State, and local agencies with specific interests and 

expertise through correspondence, telephone calls, and agency meetings. 

Throughout the course of the environmental review process, consultations with the five 

cooperating agencies, as well as the U.S. Environmental Protection Agency (EPA) (Regions 

5 and 8), discussed Section 303 elements, such as historic sites, recreational trails, parks, and 

wildlife refuges. 

2.4.3 Local Coordination 

As part of community outreach and consensus building for the Project, DM&E worked with 

communities in which the DM&E rail line exists. Community plans for 54 of the 56 

communities along DM&E’s existing mainline for rehabilitation were jointly developed to 

address community issues and concerns, minimize potential project-related impacts, and 

create opportunities for each respective community. 

2.5 STB’S PUBLIC OUTREACH 

SEA conducted extensive public outreach throughout the environmental review process for 

the proposed PRB Project, beginning with SEA’s Notice of Intent (published in the Federal 

Register on March 30, 1998) to prepare an EIS. Outreach continued during development of 

the scope of study and preparation of the DEIS and FEIS, through meetings and 

consultations, site visits, use of the Board’s official Web site, and a toll-free Environmental 

Hotline. In addition, SEA prepared comprehensive mailings of postcards, a newsletter, and 

other informational materials and provided many opportunities for government agencies, 

including SHPOs, Tribes, and citizens to comment on the proposed PRB Project. 

The DEIS included a detailed discussion of SEA’s public outreach activities prior to issuance 

of the DEIS (see Powder River Basin Expansion Project DEIS–Appendices B and C). This 

part summarizes those activities and efforts. 

2.5.1 Public Involvement Approach and Process 

In encouraging public participation, SEA complied with pertinent Federal statutes, 

regulations, and executive orders to design public participation activities that broadly 

informed the public about the proposed project. SEA also offered the public many 

opportunities to raise concerns at public meetings, including those related to properties that 

are also protected by Section 303, as well as to review and comment in writing on all aspects 

of the DEIS, including the PA. This allowed SEA to assess and address public concerns and 

determine the extent to which additional environmental analysis and mitigation measures 

were required for preparation of the FEIS. Appendix O of the FEIS contains copies of public 

involvement materials mentioned here and elsewhere in the FEIS. 
 Coordination 

Section 303 Statement 2-9 January 2007 

2.5.2 DEIS and FEIS Notification 

SEA used a number of notification methods to inform the public of the proposed PRB Project 

and milestones in the environmental review process. These activities involved distributing 

the DEIS and FEIS and notifying the public of their availability, informing all interested 

parties of the public meetings on the DEIS and how to participate in them, and encouraging 

and requesting public comment on all aspects of the DEIS, including the Biological 

Assessment, the Draft PA and Identification Plan, and the proposed Forest Plan 

Amendments. SEA also reached out to environmental justice and Tribal populations, as 

discussed later in this chapter. Table 2-1, “Public Notification,” presents a detailed list of 

SEA’s public outreach efforts during preparation and distribution of the EIS, continuing 

through the SEIS. 

SEA also maintained a toll-free Environmental Hotline for obtaining up-to-date information 

on SEA’s environmental review and the public meetings held during the DEIS comment 

period. The Hotline also allowed callers to leave messages with questions or to request 

further information. SEA’s environmental staff responded promptly to all calls received and 

updated the Hotline throughout the environmental review process. 

TABLE 2-1. 

STB PUBLIC NOTIFICATION PROCESS 

Activity Date

SEA mailed postcards to interested parties requesting confirmation of address 

and preferred format for DEIS. June 2, 2000 

Board issued a press release with information on the postcard mailing. June 2, 2000 

SEA distributed public service announcements to media on postcard mailing. June 7, 2000 

Board served the DEIS on Parties of Record, and SEA issued the DEIS for 

public review and comment. September 27, 2000 

Board issued a press release announcing the availability of the DEIS, 

information on the public meetings and how to participate in them, and project 

information. September 27, 2000 

Board published a notice in the Federal Register announcing the availability of 

the DEIS, information on the public meetings and how to participate in them, 

and certain project information. September 27, 2000 

Board served a Decision announcing the availability of the DEIS and 

providing notice of the public meetings. September 27, 2000 

SEA updated the Environmental Hotline with information about the DEIS and 

public meetings. September 27, 2000 

SEA distributed public service announcements to media with information September 27, 2000 
 Coordination 

Section 303 Statement 2-10 January 2007 

Activity Date

about the DEIS and public meetings. 

SEA published legal notices in newspapers with information about the DEIS 

and public meetings. September 27, 2000 

EPA published a notice in the Federal Register announcing availability of the 

DEIS and initiating a 92-day comment period. October 6, 2000 

Board issued a press release with reminder of and information on the first four 

public meetings. October 20, 2000 

SEA hosted 12 public meetings to solicit comments on the DEIS. October 30– 

November 16, 2000 

Board issued a press release with reminder of and information on the eight 

remaining public meetings. November 2, 2000 

SEA updated the Environmental Hotline with reminder of and information on 

the eight remaining public meetings. November 3, 2000 

SEA updated the Environmental Hotline confirming that the two public 

meetings in Pierre, South Dakota, would be held as scheduled. November 13, 2000 

SEA hosted a Tribal meeting on the Rosebud Reservation so all interested 

Tribal members could provide comments on the DEIS. 

November 28–30, 

2000 

Board served a Decision extending the close of the DEIS comment period 

from January 5, 2001, to March 6, 2001. December 14, 2000 

Board issued a press release announcing the comment period extension. December 14, 2000 

SEA mailed postcards to all interested parties announcing the comment period 

extension. December 14, 2000 

SEA updated the Environmental Hotline with information on the comment 

period extension. December 15, 2000 

SEA updated the Environmental Hotline with information on the close of the 

comment period and FEIS preparation. March 20, 2001 

Board issued a press release announcing FEIS preparation information. May 17, 2001 

SEA distributed a Project Update to all interested parties with information on 

the FEIS preparation. May 18, 2001 

Board served a Decision announcing the availability of the FEIS. November 19, 2001 

Board served a Decision granting final approval to the proposed project, 

including imposing extensive mitigation conditions and establishing an 

environmental oversight period. January 28, 2002 

Notice issued by the Board indicating that it had begun work on the four issues March 3, 2004 
 Coordination 

Section 303 Statement 2-11 January 2007 

Activity Date

remanded by the 8th Circuit Court of Appeals in Mid States Coalition for 

Progress v. STB. 

SEA conducts postcard mailing to Parties of Record, elected officials, 

agencies, and the environmental service list, indicating its intent to prepare a 

SEIS and requests up-to-date information for distributing the document. 

January–February 

2005 

Board served a Decision announcing the availability of the Draft SEIS and 

establishing a 45-day comment period. April 15, 2005 

EPA publishes Notice of Availability of Draft SEIS in the Federal Register. April 22, 2005 

Comment period on the Draft SEIS closes. June 6, 2005 

Board serves a Decision announcing the availability of the Final SEIS. December 30, 2005 

EPA publishes Notice of Availability of Final SEIS in the Federal Register. January 6, 2006 

Board serves a Decision again granting approval for the project, subject to 

extensive mitigation conditions and an environmental oversight period. February 15, 2006 

2.5.3 Public Comments Related to Section 303 Properties 

During the 152-day public comment period on the DEIS, SEA received about 8,600 

comments, all of which were read, coded, and summarized. SEA established a process to 

sort and categorize specific, general, and form letters, petitions, and issues raised at public 

meetings. Input included comments from jurisdictional agencies and local governments 

regarding avoidance and minimization of adverse effects on resources, such as public parks, 

wildlife refuges, wildlife management areas, and historic sites. 

Comments received, and subsequently responded to in the FEIS, included comments related 

to air quality at national parks, access to State recreation areas, access and safety for 

recreational trail users, impacts to waterfowl production areas, tribal coordination, and 

concerns for wildlife and public lands. 

2.5.4 Public Meetings 

From October 30 through November 16, 2000, SEA hosted 12 public meetings on the DEIS 

in Douglas and Newcastle, Wyoming; Rapid City, Pierre, and Brookings, South Dakota; and 

Mankato and Rochester, Minnesota. A meeting also was held at the Rosebud Reservation. 

All of these meetings were scheduled to occur during the public comment period, originally 

running from September 27, 2000 to January 5, 2001, but extended by 60 days to close on 

March 6, 2001. More than 1,730 persons attended public meetings, and approximately 500 

persons provided oral comments during the meetings. 

At the start of each meeting, SEA and representatives of some cooperating agencies 

presented information on the DEIS scope, approach, analysis, results, and how to submit 

additional written comments. A meeting facilitator called commenters to speak in the order 

in which they had registered. To allow as many persons as possible to speak, the facilitator 
 Coordination 

Section 303 Statement 2-12 January 2007 

enforced time limits, encouraging speakers to submit written comments to supplement their 

oral comments. Additional speakers who had not registered, or who had already spoken at 

previous meetings, were allowed to speak, when time permitted, at some meetings. Although 

SEA established specific hours for the public meetings, many of them continued for several 

hours beyond their scheduled time to allow everyone who had registered the opportunity to 

speak. A court reporter transcribed all public meetings, and transcripts were posted on the 

Board’s Web site at http://www.stb.dot.gov. 

2.6 FRA PUBLIC OUTREACH AND COORDINATION 

FRA’s public outreach and coordination builds upon the very substantial activities 

undertaken by the Board and described in the earlier sections of this chapter. On August 18, 

2006, FRA published a notice in the Federal Register advising the public of FRA’s decision 

to adopt STB’s EIS as part of its NEPA review requirements brought on by the application of 

DM&E to FRA for a loan under the RRIF program to obtain funding to cover a portion of the 

cost of the construction of the PRB Project. In its notice, FRA indicated that it had 

conducted an independent review of the EIS and SEIS to determine if FRA could adopt them 

pursuant to 40 CFR 1506.3. FRA concluded that these documents meet the standards of 40 

CFR parts 1500-1508 and that the action encompassed by the DM&E RRIF application is 

substantially the same as the action addressed in STB’s EIS. Therefore, STB’s EIS could be 

and was adopted by FRA. FRA provided until October 10, 2006, for interested parties to 

submit comments to FRA on the EIS, SEIS, Draft Section 4(f)/303 Statement, and PA 

amendment. EPA also published a Notice of Availability of EISs in the Federal Register on 

August 18, 2006 (71 Fed. Reg. 47808) that included FRA’s adoption, filing with EPA, and 

recirculation of the EIS and SEIS. FRA filed the EIS and SEIS with DOI and requested 

comments on the Draft Section 4(f)/303 Statement. 

In addition to the notice published in the Federal Register, FRA undertook an extensive 

notification process to provide information on its proposed actions and request comments 

from interested parties. FRA developed a postcard providing notification of the August 18, 

2006 Federal Register notice indicating FRA’s adoption of the STB’s FEIS and Final SEIS, 

as well as FRA’s intent to participate as a concurring party in the Section 106 Programmatic 

Agreement for the project and the availability of the Draft Section 4(f)/303 Statement. 

Additionally, the postcard provided contact information for further information, locations 

where the relevant documents were available for viewing, where to submit any comments, 

and when comments were due to FRA for consideration. FRA used STB’s environmental 

contact list to provide notification to those interested parties who had participated in the 

STB’s EIS process. FRA mailed over 1,800 postcards to Federal, State, and local agencies; 

elected officials; Tribes and Tribal representatives; landowners; interest groups; and other 

interested parties. FRA also issued a press release on August 16, 2006, announcing both the 

adoption of the STB’s environmental documents and the preparation of FRA’s own Section 

4(f)/303 Statement. The press release noted that the public comment period would continue 

through October 10, 2006. 

 

In response to the notice and postcard mailing, FRA received thousands of comments and 

responses. These included postcards, form letters, individual letters, and filings and petitions 
 Coordination 

Section 303 Statement 2-13 January 2007 

containing numerous signatures. DOI comments dated October 27, 2006, are included in 

Appendix G. FRA posted postcards and letters with written comments in the DOT docket 

system at http://dms.dot.gov, under Docket No. 26099. FRA, although receiving thousands 

of comments on its adoption notice, received few comments raising issues or concerns with 

the Section 4(f)/303 evaluation. Of the comments received, those submitted by Mayo Clinic, 

on behalf of Olmsted County, City of Rochester, Rochester Area Chamber of Commerce, and 

itself, are representative of the comments FRA received on the evaluation. These comments 

pertain to the identification of Section 4(f)/303 resources, accuracy of the Section 4(f)/303 

evaluation, use of the PA in the Section 4(f)/303 process, and FRA’s consultations conducted 

for the Section 4(f)/303 evaluation. In response to these comments, FRA has incorporated 

changes in this Final Section 4(f)/303 Statement.
 Purpose & Need 

Section 303 Statement 3-1 January 2007 

CHAPTER 3 

PURPOSE AND NEED 

3.1 PURPOSE OF THE PROPOSED ACTION 

In the application to FRA for the RRIF loan, the DM&E asserts that the purpose of the PRB 

Project is to “rebuild and expand a regional rail infrastructure into a modern, highly efficient 

and safe (STB) Class I railroad,5

 and to add over 100 million tons of net rail freight capacity 

to the national rail system–most of which will serve the heavily rail-dependant agriculture 

and utility industries.” DM&E’s original application to STB identified two primary purposes 

for the Project: first, to have a third rail carrier serve the PRB, enhancing competition and 

operations; second, to improve service and the operational safety of its existing operations. 

The Board concurred in its December 10, 1998 Decision that the PRB Project would 

transport coal more cost-competitively and reliably from a specified group of coal-producing 

mines in Wyoming’s southern PRB6

 over the shortest, most energy-efficient route to coalburning electricity-producing utilities in DM&E’s target market.7 FRA agrees that the 

Project would provide a new second set of railroad lines and third railroad providing 

transportation to coal mines in the PRB of Wyoming that has become the principal source of 

low sulfur coal for power generation west of the Appalachians. 

The Board concluded in its January 28, 2002 Decision that approving the new PRB line and 

attendant upgrade of DM&E’s lines from Wasta, South Dakota, to Winona, Minnesota, 

would have a positive impact on DM&E’s existing shippers by providing them with more 

efficient service. The Board found, and FRA agrees, that current and future shippers on 

DM&E’s existing lines would benefit from the rehabilitating and rebuilding of existing 

infrastructure to the higher standards that would be required by its use as a major route for 

coal transportation. The benefits would be in the form of reduced transit times, more reliable 

service, and improved safety. Increased rail system safety, reliability, and efficiency could 

 5

 Railroads are classified by the Surface Transportation Board according to average annual operating 

revenues (AAOR). Class I railroads have AAOR of $256.4 million or more; Class II railroads have 

AAOR of between $256.4 million and $20.5 million; and Class III railroads have AAOR of less than 

$20.5 million. 

6

 The application identifies 11 mines (Caballo, Belle Ayr, Caballo Rojo, Cordero, Coal Creek, Jacobs 

Ranch, Black Thunder, North Rochelle, North Antelope, Rochelle, and Antelope) to be served. Coal 

from these southern PRB mines has low sulfur dioxide and sodium content relative to British thermal 

unit content and is particularly suited to electric utilities, with cost-competitive delivery, as a 

replacement for high-sulfur coal. 

7

 Target markets for delivery of DM&E coal are (1) rail-based utility plants in Minnesota and 

Wisconsin, (2) Mississippi River utilities, (3) Great Lakes utilities, and (4) the Chicago gateway. 

DM&E determined that the primary criterion of its target market was an area where the project could 

introduce new transportation efficiencies and competitiveness sufficient to allow utilities to convert 

from high-sulfur coal to the lower sulfur PRB coal. 
 Purpose & Need 

Section 303 Statement 3-2 January 2007 

also produce rural economic benefits, such as increased farm income, increased economic 

development, and less burden on the rural road network. 

3.2 NEED FOR THE PROPOSED ACTION 

DM&E states the overall need for the project as the development of viable, safe, and 

competitive rail service offering a reliable fuel source to Midwestern utilities, which must 

meet increased demands for energy production and respond to a changing regulatory 

environment requiring cheaper, cleaner energy. Each component of the project need is 

summarized below and presented in detail in Chapter 1 of STB’s DEIS and in Chapter 2 of 

STB’s FEIS. 

3.2.1 National Energy Policies 

Conformance with national energy polices was a key project need addressed by the proposed 

action. SEA presented information in the DEIS that the Project would help electric utilities 

meet national energy policies and adapt to deregulation, with lower electricity prices for 

consumers. This material came from published and publicly available sources, many from 

the Edison Electric Institute (EEI).8

 Because EEI expressed support for the project during 

the DEIS comment period,9

 and because it represents the electric-utility industry, several 

commenters on the DEIS called into question EEI’s credibility. Therefore, SEA conducted 

additional research using other sources on deregulation, its effects, and the need for this 

project, if any, in a deregulated electric industry. The following summarizes their research 

regarding deregulation of the power industry: 

y Public Utility Regulatory Policy Act of 1978 (PURPA)–Allowed non-utilities 

producing energy to sell power to utilities. 

y Energy Policy Act of 1992–Enabled non-utilities to use existing transmission 

network owned, operated, and maintained by utilities. 

y Federal Energy Regulatory Commission Orders 888 and 889–Provided for open 

access to electricity network and required utilities to share information related to 

transmission capacities. 

y Deregulation requires disclosure of a utility companies operation costs. 

y Efficiencies in electrical generation have resulted in lower generation costs. 

y Restructuring of the power industry allows consumers to choose their electricity 

supplier and includes the potential for full retail competition for electrical power. 

 8

 EEI is an association of shareholder-owned electric utilities (also known as investor-owned utilities 

or IOUs), including 200 U.S. companies, over 45 international affiliates, and over 100 associations. 

EEI serves the needs of its member utilities by advocating public policy, developing and expanding 

markets, and providing information to assist members in making strategic business decisions. 

9

 EEI representatives presented oral comments of support, and Leboeuf, Lamb, Greene & Macrae 

submitted written comments of support on EEI’s behalf during the DEIS comment period. However, 

SEA considered EEI references it used in the DEIS credible because EEI’s information was based on 

published, publicly available sources. 
 Purpose & Need 

Section 303 Statement 3-3 January 2007 

y Competition in the markets due to deregulation will benefit consumer costs. 

y Competition will likely lead to improvements in electrical generation technology 

and ultimately increase electrical power generation efficiency as a means to 

reduce costs. 

y Cleaner coal sources and improved extraction methods will reduce costs and meet 

new air quality standards. 

The use of PRB coal makes it easier for existing and emerging electricity generators to 

comply with national policies on deregulation, Clean Air Act Amendments (CAAA), and 

increased utilization of coal resources. Using lower cost PRB coal helps utilities reduce both 

fuel costs and the price of electricity, to more easily attract and retain customers in a 

competitive marketplace. Existing electricity generators using lower sulfur PRB coal versus 

higher sulfur coal emit less sulfur dioxide, thereby freeing up air emission credits for sale to 

other facilities. New facilities that use PRB coal will minimize sulfur dioxide (SO2) 

emissions, thus needing to buy fewer scarce credits. 

3.2.2 Increased Energy Demand 

STB’s DEIS showed a projected increase in coal-generated electricity from 1,796 billion 

kilowatt-hours in 1997 to 2,298 billion in 2020, an annual 1.1 percent increase.10 Studies 

done in 2001 show a more rapid short-term increase. While the total projection for 2020 is 

the same, 2005’s figure was increased from 1,976 to 2,085 billion kilowatt-hours, 2010’s 

from 2,046 to 2,196 billion, and 2015’s from 2,151 to 2,246 billion.11 

In 2006, the U.S. Department of Energy (DOE) Energy Information Administration (EIA) 

projected that 2020 coal-generated electricity consumption will rise above previous estimates 

to 2,405 billion kilowatt-hours. With the retirement of 65 gigawatts of older generating 

capacity and increased electricity demand, 347 gigawatts of new electricity generating 

capacity will be needed by 2030. Coal-powered electric generators are expected to provide 

50 percent of this new generating capacity.12 

Coal has historically and is expected to continue to provide approximately 50 percent of total 

electricity generated in the United States. By 2020, coal is expected to provide about 52 

percent of electricity generation13 

 10 Annual Energy Outlook 1999–With Projections to 2020, U.S. Department of Energy, Energy 

Information Administration, December, 1998. 

11 Annual Energy Outlook 2001–With Projections to 2020, U.S. Department of Energy, Energy 

Information Administration, December, 2000. 

12 Annual Energy Outlook 2006–With Projections to 2030, U.S. Department of Energy, Energy 

Information Administration, February, 2006. 

13 Ibid. 
 Purpose & Need 

Section 303 Statement 3-4 January 2007 

3.2.3 Increased Demand for PRB Coal 

Use of low-sulfur PRB coal is an economical way to comply with the Clean Air Act and 

lower SO2 emissions. To generate competitively priced electricity systemwide, utilities may 

increase generation from low-sulfur coal, of which PRB is one of the cheapest sources. For 

these reasons, demand for coal from Wyoming, already the nation’s leading coal-producing 

State, is expected to increase. 

3.2.4 Increase Rail Capacity 

Coal is currently the largest single commodity transported by the rail industry. The DEIS 

indicated that coal accounts for 35 to 40 percent of total rail commodity traffic in the United 

States. 

Over the past 10 years, demand for PRB coal has grown by more than 59 percent from 204 

million tons produced annually in 1996 to 325 million tons today.14 To accommodate this 

tonnage, the carriers originate around 130 trains per day. Due to the increased demand, the 

two carriers have consistently expanded capacity on the Joint Line going from one to two 

tracks and from two tracks to nearly 60 miles of triple track. Demand for PRB coal is 

expected to continue to grow, and more expansion is planned. 

As reliance on PRB coal for electricity generation increases, potentially to as much as 42 

percent of all coal-generated electricity by 2010,15 the need for more rail capacity and 

alternative routes for PRB coal will also increase. The 2001 National Energy Policy 

recognizes the importance of rail transportation to PRB coal resources. It notes that there are 

currently rail capacity problems that have created a bottleneck for movement of coal out of 

the Wyoming PRB. EIA further indicates that railroad expansions in the PRB are necessary 

to enable mines to meet the expected increased demand for PRB coal.16 As noted in the 

DEIS, the additional rail capacity of a third PRB rail carrier and its upgraded system would 

alleviate the impacts of rail service failures or delays caused by flooding and snowstorms. 

The Project would provide additional capacity for the PRB, as well as the upper Midwest. 

DM&E’s rail line would provide an alternative route for UP and BNSF trains leaving the 

PRB, should there be problems on the Joint Line. Conversely, if the project is approved, UP 

and BNSF lines could provide alternative rail routing, if DM&E were to experience 

temporary service problems. 

3.2.5 Increased Rail Competition 

Presently only two railroads, UP and BNSF, serve the PRB. Both UP and BNSF can reach 

the PRB from the south along the Joint Line, and BNSF also has access from the north. This 

 14 Submission of Union Pacific Railroad Company, STB Ex Parte No. 657 (Sub-No.1), Major Issues in 

Rail Rate Cases, p. 8, May 1 2006 

15 Russell A. Carter, Future Uncertainty Demands Changes in Coal Transport, Marketing, Coal Age, 

December, 1999. 

16Annual Energy Outlook 2001–With Projections to 2020, U.S. Department of Energy, Energy 

Information Administration, December, 2000. 
 Purpose & Need 

Section 303 Statement 3-5 January 2007 

arrangement offers a certain level of competition. However, depending on the destination of 

coal being shipped, a customer may have only single-carrier access because, as discussed in 

the DEIS, only one carrier serves a particular geographic market, or only one carrier offers a 

route direct enough to be economically competitive. Therefore, although the Joint Line 

provides competitive access to the PRB, competitive access for individual utility customers 

generally does not currently exist. 

DM&E has stated that the proposed project would increase rail competition by giving 

another rail carrier access to the PRB mines.17 Although DM&E does not have direct 

connections with significant coal-using facilities, its eastern connections with five other rail 

carriers, including UP and BNSF, could provide utilities access to a rail carrier with a shorter 

transportation route than their current carriers if the PRB Project is approved and 

implemented. In that event, utilities trying to reduce fuel and transportation costs may elect 

to have DM&E transport their coal from the PRB to an interchange point with their current 

carrier for final transport to the generating facility. 

Such alternative routes could increase utilities’ coal transport options in areas served by more 

than one of these railroads, resulting in competition between DM&E and UP, DM&E and 

BNSF, or among all three, depending on electric utility location. In fact, in its December 10, 

1998 decision, the Board stated that DM&E could likely obtain from 30 to 60 percent of the 

coal-transport business in the various markets DM&E identified in its application. 

Additionally, the Board indicated that DM&E would likely become the dominant carrier of 

coal to the upper Midwest, the region that DM&E has identified as its primary market, due to 

mileage advantages offered by its system in this region. 

If the PRB Project is constructed, UP and BNSF would continue to transport coal to their 

current exclusive markets (Montana, northern Arizona, and large portions of Washington for 

BNSF; Nevada, southern Arizona, and large portions of Idaho and Texas for UP) and 

compete in markets where each provides service (California, Oregon, Kansas, Missouri, 

Oklahoma, and eastern Texas). Increased rail competition from DM&E on its shorter route 

could result in reduced transportation costs for utilities in DM&E’s core markets, thereby 

reducing total fuel costs for the generation of electricity as discussed previously. Reduced 

overall energy generation costs could result in cheaper or more stable energy costs for 

electricity consumers, including commercial, industrial, and residential users. 

3.2.6 Safe and Reliable Rail Service 

While the first RRIF loan to the DM&E has funded infrastructure improvements on portions 

of DM&E and IC&E lines, much of DM&E’s railroad lines remain deteriorated and pose 

safety and service problems, as discussed in the DEIS. In Figure 3-1, a comparison of 

DM&E’s train accidents with that of other Class II railroads, excluding commuter railroads 

which are very different from freight railroads, shows that DM&E’s record is poor. Further 

examination illustrated in Figure 3-2 shows that a significant percentage of the difference 

between DM&E and other Class II freight railroads is due to track-caused accidents, which 

 17 Gerald Vaninetti, Coal Train Blues, Electric Perspectives, July/August 1997; Rebecca Smith and 

Daniel Machalaba, As Utilities Seek More Coal, Railroads Struggle to Deliver, Wall Street Journal. 

March 15, 2006. 
 Purpose & Need 

Section 303 Statement 3-6 January 2007 

comprise 56 percent of DM&E’s train accidents. The improvements to be made with the 

RRIF loan for the PRB Project would dramatically improve DM&E’s track and can 

reasonably be expected to eliminate a significant percentage of the DM&E’s track-caused 

accidents. 

Figure 3-1. 

4

DME Train Accidents

Per Million Train-Miles

0

10

20

30

40

50

60

70

80

90

100

Number Accidents

0.00

5.00

10.00

15.00

20.00

25.00

Rate

Train 46 52 94 64 42

DME Rate 15.07 11.6 23.58 18.33 12.59

Class 2 Rate 11.26 9.92 12.13 10.49 8.63

2002 2003 2004 2005 2006

Figure 3-2. 

5

DME Track-Caused Accidents

Per Million Train-Miles

0

10

20

30

40

50

60

70

Number Accidents 

0.00

2.00

4.00

6.00

8.00

10.00

12.00

14.00

16.00

Rate

Track 21 31 60 31 23

DME Rate 6.88 6.92 15.05 8.88 6.89

Class 2 Rate 4.24 3.48 4.54 3.5 3.09

2002 2003 2004 2005 2006

. 
 Purpose & Need 

Section 303 Statement 3-7 January 2007 

The safety of DM&E’s operations has been of concern to FRA for some time. The number 

of employee injuries on DM&E’s system increased 93 percent from 2003 to 2004 and 

increased 11.1 percent from 2004 to 2005. The number of track-caused derailments 

increased 107.7 percent from 2003 to 2004. In response to these and other concerns, FRA 

initiated a series of systemwide, onsite inspections to determine the level of DM&E’s 

compliance with FRA safety regulations regarding Railroad Operating Rules and Federal 

Track Safety Standards. In addition, FRA conducted inspections of DM&E’s highway-rail 

grade crossing warning systems and related records to determine DM&E’s compliance with 

FRA’s Grade Crossing Signal System Safety standards. FRA also completed bridge 

evaluations to determine if DM&E’s bridge inspection and management practices met the 

recommendations in FRA’s Bridge Policy. FRA identified deficiencies in a number of areas. 

FRA and DM&E maintained an active and open dialogue in light of FRA’s findings, and 

DM&E initiated steps to address FRA’s concerns. In order to provide a structure to DM&E’s 

response, FRA and DM&E entered into an October 18, 2005 Safety Compliance Agreement 

that identifies in detail the actions to be undertaken by DM&E regarding railroad operating 

rules, Federal track safety standards, grade crossing signal system safety, and FRA’s Bridge 

Policy. 

FRA has also supported DM&E’s efforts to improve the condition of its facilities through a 

previous RRIF direct loan. In January 2004, FRA provided a $233 million Federal loan to 

DM&E that was to be used for, among other things, improvements to the rail lines between 

Wolsey, South Dakota, and Tracy, Minnesota; improvement to rail bridges between Wolsey, 

South Dakota, and Springfield, Minnesota; and rehabilitation of the tracks from Owatonna, 

Minnesota, to Mason City, Iowa, and from Lawler, Iowa, to Calmar, Iowa. The loan also 

afforded DM&E the opportunity to use its enhanced cash flow, resulting from the refinancing 

of existing debt on substantially better terms, for an expanded program of infrastructure 

investment to address deferred maintenance and make other capital improvements. The loan 

allowed DM&E to make a significant start on the upgrading of the railroad, particularly in 

the heaviest traffic density area of eastern South Dakota and western Minnesota and put 

DM&E on a stronger financial footing so that it could raise its future commitments of capital 

expenditures. The second RRIF loan for the West End Project will extend these service 

improvements to existing shippers west of Wall, South Dakota, and will further improve the 

safety of DM&E’s operations by upgrading track. 

With projected increases in the revenue base from the Project, DM&E believes it could 

improve existing rail infrastructure and fund major grade crossing and right-of-way 

protection enhancements, providing badly needed safety and service improvements for 

DM&E’s shippers and for future rail service needs. DM&E states that it could make these 

improvements only with the influx of capital made possible through the PRB Project. 

3.2.7 Conclusion On Project Need 

The STB determined that the proposed PRB Project would provide DM&E the opportunity to 

expand its existing system into the PRB, thus capitalizing on the increasing demand for PRB 

coal. The PRB Expansion Project would generate the revenue necessary for rehabilitation of 

DM&E’s existing system while also improving rail service for DM&E’s existing shippers. 

Additionally, the project would provide increased regional rail capacity and competition, 
 Purpose & Need 

Section 303 Statement 3-8 January 2007 

thereby enabling the PRB mines and railroads to meet the projected increased demand for 

PRB coal. 

In conclusion, STB found, and FRA agrees, that the DM&E rail infrastructure is in need of 

systemwide rehabilitation to provide safe rail transportation, but such improvements require a 

substantial financial investment. National policies, such as deregulation of the electric-utility 

industry (encouraging utilities to explore ways to reduce costs, including fuel) and the CAAA 

(requiring reductions in SO2), coupled with projected increase in energy consumption, are 

creating a growing demand for PRB coal. This demand requires increases in rail capacity 

and rail competition in the PRB to ensure increased, reliable, efficient, and cost-effective 

transport of PRB coal to utility users. 

FRA conducted a review of the STB’s EIS for the purpose of adoption pursuant to 40 C.F.R. 

1506.3 and found that the actions encompassed by the DM&E PRB Project RRIF application 

are substantially the same as the agency actions covered by the STB’s EIS and SEIS, that the 

EIS and SEIS adequately assess the environmental impacts associated with the Project and 

meet the standards of the CEQ NEPA Regulation, and that the EIS and SEIS can be adopted 

by FRA. 
 Project Alternatives 

Section 303 Statement 4-1 January 2007 

CHAPTER 4 

 PROJECT ALTERNATIVES 

The PRB Project EIS describes in detail the process followed, considerations included, and 

efforts made to establish the alignment alternatives and avoid or minimize effects on 

environmental resources, including properties that are covered by Section 303. Through the 

course of the EIS, input was received and considered from cooperating agencies, 

participating agencies, other Federal, Tribal, State, and local agencies or governmental units, 

and the public on potential effects, mitigation and environmental resource issues. Much of 

the discussion concerning the various alternative routes was based on Section 303 resources 

though not in the context of a specific Section 303 review. Chapters 3 and 4 of the FEIS 

provide detailed information on alternatives formulation and development. Appendix C 

contains a copy of these chapters for reference. 

4.1 ALTERNATIVES FOR THE EXISTING RAIL LINE CONSIDERED BY STB 

4.1.1 Summary of Alternatives 

The rehabilitation of DM&E’s existing line does not require approval from STB under 49 

U.S.C. 10901. However, because the rehabilitation of DM&E’s existing line would not 

occur to the extent required to transport large volumes of coal but for the expansion of 

DM&E’s system, the environmental analysis in the EIS covered the projected rehabilitation 

and increased use of approximately 600 miles of the existing line. Various alternative 

routings, including construction and operation of bypass alternatives proposed by some of the 

communities along the existing line and by DM&E to avoid operational conflicts with a 

competing railroad, for handling the traffic were also evaluated for the existing line. 

However, these bypass alternatives represented only a small portion of the entire existing rail 

alignment proposed for rehabilitation. No construction alternatives were proposed or 

evaluated for the remainder of the existing rail line as no reasonable or prudent alternatives 

were identified. 

The No-Action Alternative would result from the Board’s denial of DM&E’s application to 

construct and operate a new rail line into the PRB. While DM&E would not be restricted 

from rehabilitation and reconstruction of the existing rail line, no new construction outside 

the existing rail right-of-way would be approved. DM&E has stated that it is unlikely that it 

could undertake rehabilitation of the scope discussed in the EIS without expansion into the 

PRB. 

4.1.2 Identification of the Preferred Alternative 

As noted above, STB, as part of the EIS for the PRB Project, identified only action and noaction alternatives for the rehabilitation of DM&E’s existing rail line. The FEIS designated 

rehabilitation of DM&E’s existing rail line as the Action Alternative, should the Board grant 

DM&E approval for construction and operation of the PRB Project. In this case, if STB 
 Project Alternatives 

Section 303 Statement 4-2 January 2007 

selected construction of the PRB Project as the preferred alternative and granted DM&E 

authority to construct the PRB Project, such authority would result in the implementation of 

the Action Alternative for the existing rail line. As explained in the FEIS, an upgraded, 

rehabilitated rail line could offer safety benefits to DM&E’s existing rail operations and 

enhance safety in the communities and surrounding rural areas through which DM&E 

operates. Under the Action Alternative, DM&E would add up to 34 unit coal trains per day 

to its current rail operations. After thorough consideration of the proposed project, the STB, 

in Decisions in 2002 and 2006, granted DM&E authority to construct the Project along a 

specified alignment, as this alternative, although not without significant environmental 

impacts, was considered environmentally preferable to other new construction alignments 

and the no-action alternative. 

4.2 ALTERNATIVES CONSIDERED FOR THE RAIL LINE EXTENSION 

4.2.1 Summary of Alternatives 

The four major alternatives for the rail line extension were: 

y Alternative A–The No-Action Alternative (i.e., no authorization for DM&E to 

construct and operate a rail line extension into the PRB). 

y Alternative B–The route proposed by DM&E in its application. 

y Alternative C–The route subsequently developed based on STB, cooperating 

agency, SHPO, and other consultation. It avoided many environmentally 

sensitive areas and resources, including cultural and historic and other Section 

303 resources, to a greater extent than Alternative B. 

y Alternative D–Alternative that, although about 100 miles longer than Alternatives 

B and C, would use existing rail transportation corridors to the extent practicable. 

4.2.2 Identification of the Preferred Alternative 

Upon completion of the environmental analysis for the DEIS and after considering comments 

received on the DEIS, SEA identified modified Alternative C as the preferred alternative and 

identified other preferred project components. This selection process considered all potential 

environmental impacts to the wide range of natural and human resources SEA evaluated 

while preparing the DEIS and FEIS. 
 Project Alternatives 

Section 303 Statement 4-3 January 2007 

Figure 4-1. STB’s Selected PRB Project Alternative C 

Based on the information developed for the DEIS, comments received on the DEIS, and 

subsequent information developed for the FEIS, SEA indicated that Alternative D would not 

further the purposes of the applicant and would also have the most significant environmental 

impacts because of the extraordinary earthwork required and impacts on resources resulting 

from the construction. SEA also determined that Alternative B would have greater potential 

impacts to the various resources than Alternative C, which was specifically developed to 

avoid or minimize impacts to sensitive natural and human resources. As a result, SEA 

concluded that if the new construction received final approval, Alternative C appeared to be 

the least environmentally intrusive action alternative for the new line extension in Wyoming 

and western South Dakota.18 

DM&E and resource agencies developed variations of Alternative C to avoid or minimize 

impacts to resources. These variations were developed to minimize impacts to the Cheyenne 

River, wildlife resources, paleontological resources, Angostura Irrigation District facilities, 

and land use. SEA identified environmentally preferable alternatives among each of the 

alignment variations evaluated in the EIS. As discussed in detail in the FEIS, SEA’s 

 18 USFS indicated for the DEIS that its preferred alternative was the No-Action Alternative. However, 

USFS acknowledged that DM&E’s proposal may have a broader, national interest. Therefore, USFS 

reasoned that if the Board should determine that DM&E’s proposal is in the national interest and 

ultimately approve the project, the preferred alternative of USFS was Alternative C. 
 Project Alternatives 

Section 303 Statement 4-4 January 2007 

environmentally preferable alternative for the proposed new construction included 

Alternative Route C, combined with the Phiney Flat Alternative, WG Divide Alternative, 

Black Thunder North Mine Loop, and the North Antelope East Mine Loop. SEA identified 

rehabilitation of the existing rail line as environmentally preferable to construction of various 

bypass routes proposed by Pierre and Brookings, South Dakota, and Rochester, Minnesota. 

SEA also recommended the route along the existing rail line through Owatonna (O-5) with a 

new connection to the IC&E and along existing rail line through Mankato (M-3), Minnesota. 

However, as these alternatives cannot be implemented without agreements from UP, SEA 

also identified as preferable the reconstruction of existing track with a new 1.7-mile 

connector in Owatonna (O-4) and the Southern Mankato Route (M-2) for these locations, 

respectively. Rehabilitation of the existing rail bridge over the Missouri River and 

rehabilitation of the remainder of DM&E’s existing mainline between Winona, Minnesota, 

and Wall, South Dakota, were identified as environmentally preferable alternatives. Finally, 

SEA recommended Option B for the Middle East Staging and Marshalling Yard and Option 

B for the West Staging and Marshalling Yard as the environmentally preferable alternatives. 

In its Decision served January 30, 2002, the Board agreed and selected the preferred 

alternatives and granted construction and operation authority based on the use of these 

alternatives. The Board reaffirmed these determinations in its February 13, 2006 decision 

giving final approval to DM&E’s proposed project and adopting mitigation conditions. The 

Board’s decision was affirmed by the 8th Circuit in Mayo Foundation, which upheld the 

Board’s determinations with respect to the four issues that were remanded following the 

Court’s earlier opinion in Mid States Coalition. Issues related to the Board’s analysis of 

alternatives and selection of the preferred alternative were upheld in the Mid States Coalition

decision (345 F.3d at 545-548). 
 Section 303 Properties 

Section 303 Statement 5-1 January 2007 

CHAPTER 5 

SECTION 303 PROPERTIES 

5.1 SECTION 106 PROPERTIES SUBJECT TO SECTION 303 

Throughout the NEPA process, SEA conducted extensive consultation with the cooperating 

agencies, SHPOs, and other governmental agencies having jurisdiction and interest in a wide 

variety of natural and human resources. These resources included many historic and 

archaeological resources under the NHPA, Section 106. These resources are subject to the 

NHPA when they meet one or more of the following criteria for listing in the NRHP. 

• That are associated with events that have made a significant contribution to the 

broad patterns of our history 

• That are associated with the lives of persons significant in our past 

• That embody the distinctive characteristics of a type, period, or method of 

construction, or that represent the work of a master, or that possess high artistic 

values, or that represent a significant and distinguishable entity whose 

components may lack individual distinction 

• That have yielded, or may be likely to yield, information important in prehistory 

or history 

The NRHP is the Nation’s official list of properties recognized for their significance in 

American history, architecture, archeology, engineering, and culture. The NRHP is 

administered by the National Park Service and includes districts, sites, buildings, structures, 

and objects. Many of these resources, which were identified in the EIS, also qualify as 

Section 303 properties. Those Section 106 resources that are also Section 303 properties are 

discussed below in Section 5.2 and include: 

y Existing NHRP eligible bridges on the existing rail line 

y Other eligible historic structures along the rail line 

y Archaeological sites 

y TCPs 

This section identifies the resources that are present in the Project corridor. 

5.1.1 Bridges, Culverts, and Others 

Existing bridges, culverts, and other track-related structures eligible for the NRHP along 

DM&E’s existing rail line proposed for rehabilitation in Minnesota and South Dakota are 

summarized below. See also Appendix D for a complete listing of potentially historic 

bridges, eligibility determination, and planned disposition. Some of the bridges listed in 

Appendix D in the Project area were determined not eligible possibly because they were less 
 Section 303 Properties 

Section 303 Statement 5-2 January 2007 

than 50 years old at the time the EIS was prepared. One steel deck-plate girder bridge in 

Minnesota, and 29 timber bridges, 20 in Minnesota and 9 in South Dakota, have become 50 

years old since the EIS was prepared. It is not known at this time if these bridges might be 

eligible for the NRHP. However, the conclusions in the statement for each bridge type 

would apply to these additional bridges, and they will be considered through the process of 

identification required in the PA. For the purposes of this Section 303 analysis, FRA is 

assuming that all 30 of these bridges are eligible for the NRHP and thus are Section 303 uses. 

5.1.1.1 Bridges 

In Minnesota, the EIS identified that 298 bridges were eligible for the NRHP. In South 

Dakota, 163 were identified as eligible. These bridges are classified, categorized, and 

discussed below (the DEIS discusses them in more detail, see Appendix N). 

Timber Bridges–A total of 49 timber bridges in Minnesota and 87 timber bridges in 

South Dakota are considered eligible for listing in the NRHP by the SHPOs. All of 

these structures are of the same relative style, “Open Deck Pile Trestle,” and 

generally span approximately 13 feet or consist of multiple spans of 13 feet in length. 

Steel–A total of 70 steel bridges in Minnesota and 51 steel bridges in South Dakota 

are considered eligible for listing in the NRHP by the SHPOs. These steel bridge 

main spans fall primarily into the following structural groups: I-beam, through-plate 

girder, deck-plate girder, through-truss, and deck-truss. In each of those categories, 

they can be summarized and discussed as a functionally equivalent group, all 

requiring the same treatment. 

I-Beam–Thirty-two of the 70 eligible steel bridges in Minnesota and 4 of the 51 

eligible steel bridges in South Dakota are I-beam structures. These structure types 

are light cross-section steel beam sets with diaphragms or stiffeners so they act as 

a composite structural member and generally span less than 25 feet. They are 

primarily bearing on either a steel bridge shoe or steel plate on top of a masonry 

bridge seat or timber cap and pier. 

Through-Plate Girder–Eighteen of the 70 eligible steel bridges in Minnesota and 

17 of the 51 eligible steel bridges in South Dakota are through-plate girder 

structures. These structure types are built-up or fabricated steel members 

generally spanning 30 to 80 feet of opening with the steel structure above the top 

of rail. 

Deck-Plate Girder–Seventeen of the 70 eligible steel bridges in Minnesota and 12 

of the 51 eligible steel bridges in South Dakota are deck-plate girder structures. 

These structure types are generally the same as the through-plate girder, except 

the entire steel girder structure is below the top of rail or deck and predominantly 

span in the range of 30 to 50 feet. 

Through-Truss–Two of the 70 eligible steel bridges in Minnesota and 18 of the 

51 eligible steel bridges in South Dakota are through-truss structures, spanning 
 Section 303 Properties 

Section 303 Statement 5-3 January 2007 

approximately 140 to 160 feet in length in Minnesota and 127 to 445 feet in 

length in South Dakota. These structure types are characterized by the train 

traveling through the structure. 

Deck-Truss–One of the 70 eligible steel bridges in Minnesota is a deck-truss 

structure, spanning approximately 129 feet in length. This structure type is 

similar to the through-truss, but the entire structure is located below the deck (i.e., 

below the top of rail). 

5.1.1.2 Stone Box Culverts 

A total of 159 stone box culverts in Minnesota and 25 stone box culverts in South Dakota are 

considered eligible for listing in the NRHP by the SHPOs. These structures are generally 

short (approximately 4 to 8 feet) in length, constructed of cut stone built in box fashion with 

two walls and a stone lid. 

5.1.1.3 Stone Arch Bridges 

A total of 15 stone arch bridges in Minnesota are considered eligible for listing in the NRHP 

by the SHPO, with spans ranging from 10 to 32 feet. These structures consist of quarried 

stone configured in an arch. 

5.1.1.4 Concrete Bridges 

A total of two concrete bridges in Minnesota are considered eligible for listing in the NRHP 

by the SHPO. Both of these structures are reinforced box culverts. 

5.1.1.5 Miscellaneous Bridges and Culverts 

A total of three other bridges in Minnesota are considered eligible for listing in the NRHP by 

the SHPO. These structures include one concrete and I-beam bridge and two cast iron pipe 

culverts. 

5.1.2 Other Eligible Structures

The EIS and Section 106 processes identified five NRHP eligible buildings in Minnesota and 

seven in South Dakota (see DEIS in Appendix N). These structures are listed below. The 

Project does not include plans to alter any of these buildings. 

NRHP eligible buildings identified included: 

• Minnesota 

 NRHP 

 MP NAME ELIGIBLE 

 179.90 Winona & St. Peter Freight Depot Listed 

 165.20 C&NW Depot, New Ulm* Listed 

 179.80 C&NW Depot, Sleepy Eye Listed 

 102.5 C&NW Passenger Station, Waseca* Yes 
 Section 303 Properties 

Section 303 Statement 5-4 January 2007 

 (DM&E Building 904) 

 253.70 Tyler Grain Building Yes 

• South Dakota

 NRHP 

 MP NAME ELIGIBLE 

 291.00 C&NW Depot, Brookings Yes 

 (DM&E Building 916) 

 329.50 C&NW Depot, DeSmet Yes 

 384.70 Quinn Stockyards Yes 

 362.60 Huron Roundhouse* Listed 

 (DM&E Building 921) 

 362.60 Huron Roundhouse Office* Listed 

 321.00 Lake Preston Freight House Yes 

 402.80 Miller Freight House Yes 

*DM&E currently occupy these buildings and have no plans to make any changes. 

There is no need or plans to alter any of the structures not owned by DM&E as part of the 

proposed rail construction, operation, or rehabilitation. 

5.1.3 Cultural Resources 

5.1.3.1 Archaeological Sites 

Intensive archaeological surveys have been performed for all of the existing rail line in South 

Dakota. Although the majority of the new rail line alignment in South Dakota has been 

surveyed (except for areas where landowner access could not be obtained), final evaluations, 

recommendations, and reports have not yet been completed. Furthermore, very little of the 

new rail line has been surveyed for archeological resources in Wyoming. Additionally, field 

efforts for reconnaissance level surveys for substantial portions of the existing rail line in 

Minnesota have been completed. Although evaluations, recommendations, and reports for 

some of these surveys have not yet been completed, the results of these surveys were used for 

the evaluation of potential effects to archaeological resources during the EIS process. The 

scope of the project (over 200 miles of new construction and 600 miles of rehabilitation) and 

landowner access issues precluded completion of intensive surveys for the entire project. 

Therefore, as discussed previously, a PA was developed to ensure that identification of 

cultural resources, considerations and alternatives for avoidance, and, if necessary, 

appropriate mitigation are completed as part of project construction and operation. 

Additional archaeological surveys shall be performed pursuant to the PA and attached 

identification plan. 

Archaeological sites eligible for the NRHP under Criteria A, B, or C are potential Section 

303 resources. Sites eligible for NRHP listing under Criteria D alone are not subject to 

Section 303 analysis.19 Based on preliminary review of the results of archaeological surveys 

 19 NRHP Eligibility Criteria are as follows: A=Site has an association with significant events; B=Site 

has an association with significant people; C=Site has distinctive design or construction (distinctive 
 Section 303 Properties 

Section 303 Statement 5-5 January 2007 

completed to date, all archaeological sites potentially eligible for the NRHP that would 

potentially be affected by the proposed project are eligible solely under Criteria D. 

According to the PA, additional surveys will be completed prior to construction of the rail 

line extension, as well as specific areas of previously undisturbed land along the existing rail 

line. The PA, as discussed previously in Section 2.2.2, describes the methodology for 

identification of eligible resources, determination of effects, evaluation of avoidance 

alternatives, development of treatment plans (mitigation), documentation, and public 

involvement to satisfy Section 106 NHPA requirements. 

5.1.3.2 Traditional Cultural Properties 

Coordination with various Native American Indian Tribes was performed to identify 

locations of TCPs. At this time, TCPs are anticipated to occur within and along the preferred 

alternative for the new rail line extension. Exact number and locations are not currently 

known. No TCPs are anticipated to exist on the existing rail line; however, some may be 

within the area of potential effect of the existing rail line. The PA describes the methodology 

for identification of eligible resources, determination of effects, evaluation of alternatives for 

avoidance, development of treatment plans (mitigation), documentation, and public 

involvement to satisfy Section 106 NHPA requirements with respect to the TCPs. A TCP is 

defined in the 1990 National Register Bulletin # 38 generally as land that may be eligible for 

inclusion in the NRHP because of its association with cultural practices or beliefs of a living 

community that: (a) are rooted in that community’s history and (b) are important in 

maintaining the continuing cultural identify of the community. Land referred to as a TCP is 

not automatically considered historic property or treated differently from other historic 

property. A TCP must also meet the National Register criteria as a site, structure, building, 

district, or object to be eligible for Section 4(f) protection (see generally, Question 26, 

FHWA Section 4(f) Policy Paper, Office of Planning, Environment and Realty, Project 

Development and Environmental Review, March 2, 2005). 

5.2 OTHER SECTION 303 PROPERTIES 

This section identifies other potential Section 303 properties that are in or near the Project 

Area, and were analyzed in the EIS, but not considered as Section 106 properties. While the 

EIS study area included broad geographic zones, such as the counties through which the 

existing rail line and the proposed new construction alternatives extended for such analysis as 

socioeconomics, the Project Area generally included only land immediately adjacent to the 

existing and proposed rail lines per historic and archeological resources. 

FRA has evaluated all public lands identified in the DEIS for their potential as Section 303 

properties. All properties that exist within the Project Area or that are located within 1 mile 

of the Project Area were identified by STB and evaluated in the DEIS and are considered by 

FRA as potential Section 303 properties. In addition, FRA reviewed maps and contacted 

 construction characteristics, work of a master, a distinguishable entity); D=Site has potential to provide 

significant information. See also 23 C.F.R. §771.135(g)(2). 
 Section 303 Properties 

Section 303 Statement 5-6 January 2007 

municipalities to identify city and local parks for evaluation. These properties were then 

reviewed relative to their location in respect to the Project. 

The type of use that occurs on these properties was considered to determine if they qualify as 

a Section 303 property. The following types of properties were identified that would qualify 

as a Section 303 property: 

y Wildlife and waterfowl refuges 

y Public recreation areas (Federal, State, and local parks) 

y Public use bicycle/pedestrian trails 

A comprehensive listing of the Federal, State, and local properties evaluated for the Project 

and determination of qualification of a Section 303 property are presented in Appendix E. Of 

the resources listed in Appendix E, only the four Section 303 recreational trail uses have been 

identified, and all of these involve only temporary trail closures. 

The following properties were determined not to be subject to Section 303 for the associated 

reasons: 

y USFS Buffalo Gap National Grasslands and Thunder Basin National Grasslands–

In managing the National Forests and National Grasslands, USFS considers and 

balances many competing concerns and interests. In the planning process, USFS 

must ensure that forest plans “provide for multiple use and sustained yield of 

goods and services from the NFS in a way that maximizes long term net public 

benefit in an environmentally sound manner.” 36 C.F.R. § 219.1(a). Further, 

USFS must manage the Forests and Grasslands in a “manner that is sensitive to 

economic efficiency” and responsive to “changing economic conditions of land 

and other resources and to changing social and economic demands of the 

American people.” 36 C.F.R. § 219.1(b)(13) & (14). Finally, the Congressional 

Act creating these Grasslands specifically requires USFS to manage the 

Grasslands to provide for “developing energy resources.” 7 U.S.C. § 1010. 

Management plans for these two Grasslands do not include any designated 

recreational sites. Only casual public recreation is provided; in some instances, 

public access is not possible without access to private property. No formal 

recreational components, such as camping sites, hiking trails, or other public 

amenities are provided. These areas are not managed as wildlife or waterfowl 

refuges. 

y USFS Roadless Area Review and Evaluation (RARE II) Properties and 

Inventoried Roadless Areas–These areas are candidates for possible inclusion into 

the National Wilderness Preservation System. The three RARE II areas and three 

Inventoried Roadless areas are within the Buffalo Gap National Grassland and, 

therefore, do not have a primary recreation component and are not established as a 

wildlife refuge. The Project would not cross these areas. 

y BLM Properties–These properties are leased to private entities for the purpose of 

and use for livestock grazing. Similar uses as those discussed above for USFS 

lands apply. Additionally, BLM lands crossed by the Project are managed for 
 Section 303 Properties 

Section 303 Statement 5-7 January 2007 

multiple uses, including mineral extraction and ancillary facilities, such as rail 

lines. 

y BOR Facilities–These facilities, including primarily irrigation canals and related 

facilities and adjacent lands, while owned by the Federal government and are 

thereby public in nature, do not have a recreation or wildlife or waterfowl 

component associated with them as they are solely intended for irrigation 

purposes. 

y State of Wyoming, Office of State Lands and Investments–These properties are 

owned by the State of Wyoming and subject to leases to private entities for the 

purpose of livestock grazing. 
 Uses of the Section 303 Properties 

Section 303 Statement 6-1 January 2007 

CHAPTER 6 

USES OF THE SECTION 303 PROPERTIES 

A use occurs when a property protected by Section 303 is permanently incorporated into a 

transportation facility or is temporarily occupied, causing minor effects that are subsequently 

restored. Removal of a historic property is considered a direct use. A de minimis impact 

occurs when the impacts of a project on publicly owned parks, recreation areas, and wildlife 

and waterfowl refuges do not adversely affect the activities, features, and attributes of the 

particular resource.20

Proximity effects may be considered in determining if a use occurs when a project does not 

clearly incorporate (or remove) a property protected by Section 303 but is so close to the 

property and has so significant an effect that the activities, features, or attributes of the 

property are substantially impaired. Five criteria are used to evaluate this type of use: 

● Noise 

● Aesthetic characteristics of the property 

● Property access 

● Vibration 

● Ecological intrusion, such as substantially diminished wildlife habitat 

No Section 303 properties have been identified on the rail line extension as of this date, 

though additional analysis will be carried out through the process established in the PA with 

respect to TCPs. Various alternative alignments for construction of the new rail line were 

evaluated by SEA in the EIS, as previously discussed, and STB approved construction of 

Alternative C, which was determined to impact fewer archaeological sites. To the extent 

NRHP listed or eligible TCP’s or archaeological sites may qualify as Section 303 properties, 

STB has approved an alternative expected to avoid these resources to a greater extent than 

other alternatives and has developed a PA, in which FRA is participating, requiring 

consideration of avoidance of these sites as part of development of plans for the treatment of 

any such sites within the area of potential effect for the new construction. FRA has reviewed 

and supplemented STB’s analysis and finds that the environmentally preferable routing 

alternatives selected by STB are the least likely to involve Section 303 resources, including 

either NRHP listed or eligible TCP’s or Section 303 qualifying archaeological sites. FRA’s 

participation in the PA will help assure consideration of avoidance alternatives (and 

appropriate mitigation) through application of appropriate Section 303 standards. 

Section 303 properties have been identified on the existing rail line to be rehabilitated. In 

preparing this Section 4(f)/303 Statement, FRA thoroughly considered the potential impacts 

 20 DOT FHWA–Questions and Answers on the Application of the Section 4(f) De Minimis Impacts 

Criteria. The cover memorandum for this document explains, “This guidance will be incorporated in a 

future revision of the Section 4(f) Policy Paper. Although the Section 4(f) Policy Paper was developed 

by FHWA, FTA and other modal administrations generally follow the guidance, where appropriate and 

applicable to transit projects and other proposals.” 
 Uses of the Section 303 Properties 

Section 303 Statement 6-2 January 2007 

of the reconstruction alternative on Section 303 resources. The No Action alternative would 

not satisfy the project purpose and is not prudent. Other build alternatives were not 

considered reasonable by STB and would have much greater impacts to environmental 

resources than the proposed action. FRA agrees that it would not be prudent to build a new 

rail line paralleling the existing rail line as a way to avoid the uses of historic bridges that are 

described below. Similarly, construction of a new rail line paralleling the existing line has 

not been authorized by the STB, which has the relevant jurisdiction, and therefore is not 

feasible. 

6.1 SECTION 106 PROPERTIES SUBJECT TO SECTION 303 

6.1.1 Bridges and Culverts 

DM&E considered the bridges and culverts along its existing rail line determined to be 

eligible for the NRHP and provided an assessment regarding the suitability of the bridges for 

the proposed project, and if they would require rehabilitation or replacement in order to 

accommodate the rail traffic that would result from the proposed project. DM&E provided 

the Disposition and Class Type fields in Appendix D; Appendix F includes tables of bridges 

and additional information on timber and steel bridges. DM&E determined that all of the 

136 previously determined NRHP eligible timber bridges, the 29 additional timber bridges 

that are now more than 50 years old and for which FRA is assuming are eligible for the 

NRHP for the purpose of this analysis, and all of the 36 eligible steel I-beam bridges would 

have to be replaced. Although DM&E indicated a disposition in Appendix D, the disposition 

of the 35 through-plate girder, 29 deck-plate girder bridges,21 21 through-truss and deck-truss 

structures, and 1 additional through-truss structure now more than 50 years old and for which 

FRA is assuming are eligible for the NRPH for the purpose of this analysis, has not been 

finalized and would be made during the design-build phase of the project based on best 

engineering practices. However, FRA has conservatively assumed for this evaluation that all 

these bridges would require replacement. FRA has proceeded on this basis because it 

expects that the engineering analysis will show that they cannot support the new traffic or 

they will likely need substantial changes that will significantly alter their historic character. 

All of the 184 stone box culverts would need to be replaced. All but one of the 15 stone arch 

bridges would likely be retained, but these bridges would require a wing wall to make them 

sufficient for continued use. Both concrete bridges would need to be replaced, as well as the 

three miscellaneous bridges and culverts. Replacement actions for these bridges would result 

in direct uses of Section 303 properties. For a discussion of avoidance alternatives and 

measures to minimize harm, see Chapter 7.0, “Avoidance Alternatives,” and Chapter 8, 

“Measures to Minimize Harm,” respectively. 

Because conclusive decisions with respect to through-plate girder, deck-plate girder bridges, 

through-truss, and deck-truss bridges cannot be made at this time but will be made 

appropriately during the design-build stage (although FRA conservatively assumes they will 

require replacement) when additional bridge-specific information will be available, FRA will 

 21 As noted previously in Section 5.1.1, one additional deck-plate girder bridge has become old 

enough to potentially be eligible, however, it has not yet been evaluated. 
 Uses of the Section 303 Properties 

Section 303 Statement 6-3 January 2007 

have a continuing involvement to ensure that the Section 303 standards continue to be 

applied to the decisions on the future disposition of these bridges. Safety of rail operations is 

FRA’s highest priority, and the agency must be assured that any existing bridge that will be 

retained can meet the demands of operations with the anticipated new traffic levels and car 

weights/axle loads. 

FRA will address this role in two ways. First, as noted above, FRA will be participating with 

STB, ACHP, and the SHPOs of South Dakota, Minnesota, and Wyoming as a consulting 

party to the PA. As a consulting party to the PA, FRA will participate with the other 

consulting parties in decisionmaking with respect to Section 303 historic resources. DM&E 

compliance with the PA is already a condition imposed by the STB in approving the Project 

(STB Condition 106), and DM&E is a signatory to the PA. Second, should FRA decide to 

approve the DM&E’s loan application, FRA would include as one of the conditions in the 

loan documents a requirement that FRA’s written approval be obtained with respect to the 

proposed action to be taken at any of the bridges for which decisions regarding the future 

action are not made in this Section 4(f)/303 Statement. FRA’s approval would have to be 

obtained at a point prior to the taking of any irretrievable action with respect to the particular 

bridge. FRA would require DM&E to supply supporting documentation consistent with the 

Section 303 standards to enable FRA to make the appropriate determination consistent with 

the standards outlined in this Section 4(f)/303 Statement. 

6.1.2 Other Eligible Structures 

The five NRHP eligible buildings in Minnesota and seven in South Dakota would not be 

altered as a result of the Project (see DEIS, Appendix N). The project does not include plans 

to alter any of the buildings on the list. Therefore, no direct use of these properties would 

occur. Further, the structural integrity of these structures would not be compromised from an 

increase in train traffic and associated increase in vibration. As a result of comments 

received on the DEIS concerning impacts to residential structures near the rail line as a result 

of increase in vibration, SEA conducted extensive vibration analysis for the FEIS. SEA 

concluded that structures as close as 50 feet from the track would not be damaged by ground 

vibrations from trains (Chapter 4, Draft SEIS) and vibration levels would be nearly if not 

imperceptible to humans. In addition, the eligible structures are all associated with past or 

current railroad activities, were originally built next to the rail line, and were likely built to 

suit their location. 

These structures are all within or adjacent to the existing railroad right-of-way. While noise 

levels would increase as a result of the Project, these structures were built and are used in the 

railroad operating context which involved exposure to train noise. The increase in noise as a 

result of the Project would not result in a substantial impairment to the use or nature of these 

properties. Neither access to the properties or the aesthetic setting of the properties would be 

altered. No increases in vibration resulting in substantial impairment to the property would 

occur as a result of the Project. 
 Uses of the Section 303 Properties 

Section 303 Statement 6-4 January 2007 

6.1.3 Cultural Resources 

While it is known that archaeological sites and TCPs exist in the project corridor (as noted in 

Section 5.1.3.2, TCPs are anticipated to occur within and along the preferred alternative for 

the rail line extension; no TCPs are anticipated to exist on the existing rail line; however, 

some may be within the area of potential effect of the existing rail line), at this time, the 

potential for direct uses of these resources is not known. Once preliminary engineering of 

the rail line extension is developed, additional surveys will be completed, potential eligibility 

for listing on the NRHP determined, opportunities for avoidance of these resources 

evaluated, and the extent of direct uses to archaeological sites and TCPs identified, including 

those determined to be Section 303 properties. The PA describes the methodology for the 

determination of effects, development of treatment plans (mitigation), evaluation of 

avoidance alternatives, documentation, and public involvement to satisfy Section 106 NHPA 

requirements. As discussed in Section 6.1.1, FRA will have a continuing involvement 

through the PA process with respect to any uses of TCPs; as with the bridges discussed 

earlier, FRA will ensure that Section 303 standards are applied to any identified TCPs that 

are covered by Section 303. Given the vast size of the Project and the level of effort that is 

required to identify archaeological sites and TCPs, it is not possible to complete all of the 

work to identify and address these sites at this time. This led the STB and other participants 

to the need for the PA, which establishes the process to assure the appropriate analysis and 

consideration is undertaken before construction is initiated on any potentially impacted 

section. Since detailed design and engineering has yet to be accomplished, opportunities 

remain for avoiding adverse impacts to the extent practicable. 

6.2 OTHER SECTION 303 PROPERTIES 

This section describes the uses22 to other Section 303 properties including any potential 

proximity effects associated with the Project. Other eligible Section 303 properties are listed 

in Appendix E with determinations of potential uses. Publicly owned parks, recreation areas, 

and wildlife and waterfowl refuges near new infrastructure elements along the existing rail 

line, such as staging and marshaling yards, were evaluated in the EIS, and the STB’s selected 

alternative avoided uses other than limited uses of four recreational trails. STB also found 

that new project elements along the existing rail line, such as staging and marshaling yards, 

would not affect Section 106 resources. 

Only one Section 303 property, Minneopa State Park west of Mankato, Minnesota, was 

within or near a staging or marshaling yard. Two options were presented for this staging and 

marshaling yard: Option A–located along the existing rail line between Minneopa State Park 

and Judson, Minnesota, and Option B–located along the existing rail line 10 miles west of 

Minneopa State Park near New Ulm, Minnesota. The STB determined that Option B was 

preferable as it would avoid the Minneopa State Park area and approved yard construction at 

 22 Section 6.2.1 and 6.2.2 indicate that no direct use of a Section 303 property in the form of a 

conversion to a non-park or non-recreation use would occur as a result of the Project. Section 6(f) of 

the Land and Water Conservation Fund Act of 1965 (LWCA) only applies to properties acquired with 

LWCA funds. Therefore, Section 6(f) of the LWCA would not apply. . 
 Uses of the Section 303 Properties 

Section 303 Statement 6-5 January 2007 

this location. Thus a potential use of this Section 303 property due to yard construction and 

operation activities was successfully avoided. 

6.2.1 Recreational Trails 

Uses of recreation trails as Section 303 properties by the Project are associated only with the 

temporary closures of recreational trails. No permanent trail closures would occur as a result 

of the Project. Two trails are near the existing DM&E rail line in Minnesota (Sakatah 

Singing Hills State Trail and City of Rochester Bike and Walking Trail), and three trails are 

near or would be crossed in South Dakota (Missouri River Trail, La Framboise Island 

National Recreational Trail, and Cottonwood Path). 

• Sakatah Singing Hills State Trail–No use of this property would occur if the 

Mankato South Route (M-2) is implemented, which would not cross this trail. 

Should the Mankato Existing Rail Line alternative (M-3) be implemented, 

rehabilitation of the existing rail line would likely result in a use due to temporary 

trail closure or detour during rehabilitation activities. However, rehabilitation 

activities would likely only require trail closure for periods of 1 day or less. 

Increased rail activity would cause some delays for trail users; however, trail 

access would not be altered. While noise levels in the vicinity of the trail/rail 

crossing would increase, the trail crosses an active rail line today and is exposed 

to existing train noise. The increased noise would not substantially impair the use 

of the trail. STB identified the Mankato Existing Rail Line Alternative (M-3) as 

the preferred alternative; however, as this alternative cannot be implemented 

without an agreement between DM&E and the Union Pacific Railroad, STB also 

identified as preferable the Southern Mankato Route for this location. 

• Rochester Bike and Walking Trail–A use of this property would result due to a 

temporary closure or detour of the trail during rehabilitation of the existing rail 

line. However, rehabilitation activities would likely only require trail closure for 

a period of 1 day or less. Increased rail activity would cause some delays for trail 

users; however, trail access would not be altered. While noise levels in the 

vicinity of the trail/rail crossing would increase, the trail crosses an active rail line 

today and is exposed to existing train noise. The increased noise would not 

substantially impair the use of the trail. 

• Missouri River Trail–This trail is a part of Farm Island State Recreation Area. A 

use of this property would result due to a temporary closure of the trail during 

rehabilitation of the existing rail line. This trail provides access, including 

vehicular, to Farm Island Recreational Areas. Construction would allow for trail 

crossings as construction is estimated to take periods of less than 1 day at the trail 

crossing. As existing rail line operations are present, no changes in aesthetics 

would occur. Increased rail activity would cause some delays for trail users; 

however, trail access would not be altered. While noise levels in the vicinity of 

the trail/rail crossing would increase, the trail crosses an active rail line today and 

is exposed to existing train noise. The increased noise would not substantially 

impair the use of the trail. 
 Uses of the Section 303 Properties 

Section 303 Statement 6-6 January 2007 

• La Framboise Island National Recreational Trail–No use of this property would 

result as the current alignment does not cross this trail. 

• Cottonwood Path–A use of this property would result due to a temporary closure 

of the trail during construction. The trail would only be closed when overhead 

work is required. Construction of this trail crossing is anticipated to take 32 

weeks. However, trail closures would be in 4-week periods, with the trail closed 

for 4 weeks then open for 4 weeks, and so on for the 32-week construction period. 

A temporary detour has been identified and would be approximately 5,000 feet 

long. As existing rail line operations are present, no changes in aesthetics would 

occur. While noise levels in the vicinity of the trail/rail crossing would increase, 

the trail crosses an active rail line today and is exposed to existing train noise. 

The increased noise would not substantially impair the use of the trail. 

6.2.2 Wildlife Refuges and Parks 

STB considered State and local parks within 1 mile of the Project for proximity effects in the 

EIS. No State or local parks are within 1 mile of the new construction alignment. Local city 

and county parks along the existing line feature day-use facilities, such as picnic shelters, 

playgrounds, athletic fields, and open space areas. Minneopa State Park provides day-use 

and camping facilities, and Reconciliation Park contains a white buffalo monument 

commemorating the execution of Sioux warriors and the subsequent reconciliation of the 

parties to the conflict. These parks are adjacent to existing rail lines, as well as roadways, 

ranging from local streets to major highways, and coexist with road and railroad 

transportation activities. FRA reviewed available sources of data including the EIS and 

identified a number of Section 303 wildlife refuge and park properties along the existing rail 

line. These properties include: 

 USFWS Wildlife Refuges 

 USFWS Waterfowl Production Areas 

 National Parks 

 Minnesota State Wildlife Management Areas 

 Minnesota and South Dakota State Parks 

 South Dakota State Game Production Areas 

 Minnesota and South Dakota Local County and City Parks, Campgrounds, 

and Other Recreational Facilities 

No new right-of-way would be required from any of these areas; thus use of these properties 

is not anticipated. However, each area was evaluated for potential proximity effects. 

Proximity effects may result in constructive use of Section 303 resources. Factors, such as 

each property’s primary functions and amenities, were considered in relation to the 

property’s location to the existing rail line. 

Whereas use of a Section 303 property occurs when land of the property is permanently 

converted to transportation use, a constructive use results when a project’s proximity impacts 
 Uses of the Section 303 Properties 

Section 303 Statement 6-7 January 2007 

are so severe that the protected activities, features, or attributes that qualify a resource for 

Section 303 protection are substantially impaired.23 Substantial impairment is determined to 

occur when the protected activities, features, or attributes of the resource are substantially 

diminished. As noted previously, noise, aesthetics, vibration, property access, and 

substantial habitat intrusion are considered when evaluating whether constructive use of a 

Section 303 property would occur. For constructive use to occur: 

• Noise must substantially interfere with the use and enjoyment of Section 303 

resources sensitive to noise, such as amphitheaters, campgrounds, and properties 

where significant attributes include serenity and quiet. 

• Aesthetics provide a substantial component of the value of the Section 303 

resources, and project-related activities result in substantial impairment to the 

visual qualities of the resources, such as the obstruction of visual resources 

contributing to the setting and value of the Section 303 property. 

• Access to the Section 303 property is substantially restricted. 

• Vibration levels are substantial enough to result in damage or diminish the use of 

historic structures or buildings. 

• Ecological intrusion of the project substantially affects the value of wildlife 

habitat and/or wildlife access to a wildlife refuge or area, including waterfowl 

production areas and refuges. 

In considering these criteria, FRA noted that SEA had conducted an extensive evaluation of 

noise, vibration, aesthetics, vehicle delay, and wildlife as part of the EIS process. The 

following sections discuss each of these constructive use criteria and FRA’s evaluation of 

potential constructive use to wildlife areas, parks, and other recreational facilities. 

Noise

FRA evaluated the potential for increased noise levels to result in constructive use at Section 

303 properties, including Federal, State, and local (including county and city) parks, 

campgrounds, and other recreational facilities. 

No standards exist for noise levels at which a constructive use occurs. Guidance in 23 C.F.R. 

§ 771.135 (p)(5)(ii) and (iii) does not provide a standard for when constructive use would 

occur,24 but it establishes a starting point. Under this criterion, the Federal Highway 

Administration (FHWA) considers noise abatement for recreational areas and other similar 

facilities for exterior noise levels of 67 dBA Leq on an hourly basis. For the EIS, SEA 

conducted detailed noise modeling for the anticipated project-related increased levels of rail 

 23 See the FHWA regulation at 49 U.S.C. 303 § 771.135 (p)(2); FRA does not have a similar 

regulation. 

24 Concerned Citizens Coalition v. Federal Highway Administration, 330 F.Supp.2d 787, 794 (W.D. 

LA 2004). 
 Uses of the Section 303 Properties 

Section 303 Statement 6-8 January 2007 

traffic. SEA developed noise contours at which noise levels of 65 dBA and 70 dBA Ldn 

would be exceeded. At the highest level of anticipated rail traffic, 37 trains per day, SEA 

determined that the distance to the 65 dBA Ldn contour, considering both wayside and horn 

noise, would be approximately 2,200 feet.25 As 67 dBA Ldn is a slightly higher noise level, 

the distance at which this noise level would occur would be slightly closer to the existing rail 

line. Therefore, FRA determined that Section 303 properties within 2,000 feet of the existing 

rail line would be appropriate for consideration of potential constructive use. 

FRA recognizes the difference in 67 dBA Leq(h) and SEA’s 65 dBA Ldn. However, as no 

clear standard for constructive use related to noise exists, FRA finds it appropriate to use a 

noise level similar to SEA’s 65 dBA Ldn contour as SEA had previously considered potential 

impacts to noise sensitive receptors within this contour and because FRA regards Ldn as a 

generally more appropriate noise measurement standard for rail noise. Additionally, FRA 

determined that all the Section 303 resources along the existing rail line beyond this distance 

(nearly a half mile) would be less affected by train noise than noise from other sources closer 

to the specific property, including automobile and truck noise.26 Therefore, FRA found that 

only those resources within 2,000 feet of the existing rail line had the potential for 

constructive use (Appendix E). 

In considering whether the increased project-related noise would result in constructive use of 

Section 303 properties, FRA evaluated the existing noise environment, nature of activities, 

additional and adjacent sources of noise, and nature and duration of noise from the highest 

anticipated level of train operations (37 trains per day) for each Section 303 property. 

Generally, FRA found that all the Section 303 properties along the existing rail line provided 

opportunities and facilities for athletic events (baseball, softball, soccer, hockey, volleyball, 

horseshoes, etc.), picnicking, and general playground activities (swing sets, sand boxes, open 

space for Frisbee and other type activities, etc.). FRA notes that these activities do not 

require a noise-free environment. 

FRA also determined that all these facilities, in addition to the noise created by recreational 

users, were exposed to various levels of vehicle traffic noise and existing train noise. For 

example, Mayo Memorial Park is located in downtown Rochester, Minnesota, approximately 

800 feet from the existing rail line. While this park would experience a substantial increase 

in noise from the increased number of trains, it is already influenced by existing train noise 

and, to a much greater extent, by heavy motor vehicle traffic in the downtown commercial 

area of Rochester. 

FRA also determined that the existing rail line was typically constructed before the park 

facilities along it. Thus, the parks were developed in an environment that included periodic 

noise from passing trains and historically greater numbers of trains than today. Any 

 25 FRA notes that this contour distance is based on a 24-hour period and includes a penalty for trains 

operating during nighttime hours. Recreation at park facilities would be primarily during daytime 

hours. As such, this distance would likely be substantially reduced were only daytime trains 

considered. However, to be conservative, FRA considered 2,000 as a reasonable level for evaluation. 

26 FRA concluded that 2,000 feet provided a substantial buffer to wildlife refuges and waterfowl 

production areas such that noise from the proposed project would not result in an intrusion that would 

substantially affect the value of habitat provided by these areas. 
 Uses of the Section 303 Properties 

Section 303 Statement 6-9 January 2007 

activities occurring at these parks would have been subject to noise disturbance from passing 

trains since development of the park and the creators of the park understood that they were 

establishing a park next to an active rail line. 

Although noise levels would increase as a result of the proposed project, FRA recognized 

that this increase would be largely a result of the increased number of trains as on an 

individual basis, each passing train would potentially be quieter than existing trains. This 

difference would result from DM&E’s installation of continuously welded rail, replacing 

older, noisier jointed rail. Noise from passing trains is limited to the time it takes the train to 

pass. Noise disturbance from the increased number of trains would occur more frequently 

than at current levels but would not be continual. Only intermittent disturbance would occur 

as a result of each passing train. As a result, at the highest level of train operations, only four 

or five trains would pass a given park during an afternoon. 

Additionally, DM&E’s current trains generally operate at speeds of 20 to 30 miles per hour 

or less along the existing rail line. Following rehabilitation of the existing line, speeds would 

be increased to 45 miles per hour. This would reduce the time required for a train to pass 

(and thus the period of noise disturbance) by approximately half or more. Assuming a 135-

car train at 45 miles per hour takes less than 3 minutes to pass a particular point, over the 

course of a 5-hour (300 minutes) park visit, 6 passing trains would result in less than 20 

minutes of disturbance. For parks not adjacent to the rail line (beyond 400 feet27), this 

disturbance would be substantially less as it would be largely due to the sounding of train 

warning horns, which last for less than 1 minute per train. 

FRA has no knowledge that a previous finding of constructive use as a result of increased 

train operations and the associated noise has ever been made. Because of this and the lack of 

any noise standards for constructive use, FRA identified parks along other rail lines with high 

levels of train traffic and contacted community representatives to assess if high levels of train 

traffic resulted in substantial impairment of similar Section 303 properties. FRA targeted 

communities with rail traffic equal or greater than that expected to result from the PRB 

Project. FRA surveyed officials responsible for park management to ascertain the effect that 

rail traffic has on use of the parks. The results of this investigation are summarized in Table 

6-1. The results show that high train volumes, including those significantly higher than those 

associated with the Project, do not substantially impair the use of parks located directly 

adjacent to rail lines. Park uses successfully coexist with rail lines across the country. 

 27 The distance determined by SEA in the EIS at which the noise level of 65 dBA Ldn would occur as 

a result of only wayside noise. 
 Uses of the Section 303 Properties 

Section 303 Statement 6-10 January 2007 

TABLE 6-1. 

ANALYSIS OF TRAIN IMPACTS ON COMMUNITY PARKS ALONG 

OTHER RAIL LINES 

Community Number of 

Train per 

Day 

Park Name Contact Rail Traffic Impact 

Belle Plaine, Iowa 90 Franklin Park Parks and Recreation 

Director 

Some disturbance from train 

whistles. 

Ames, Iowa 85 Brookside Park Parks Supervisor Sometimes noise can be a 

problem. 

Mt. Vernon, Iowa 70 Davis Park Parks and Recreation 

Director 

Some noise pollution. 

Chariton, Iowa 100 Eikenberry Park City Hall No impacts identified. 

Grand Island, 

Nebraska 

Over 50 Ashley Park Parks and Recreation 

Director 

No real issues, noise can affect 

ball games. 

York, Nebraska Over 200 Miller Park Public Works Director Noise can be problem due to 

high number of trains and 

grade crossing near park. 

Hastings, Nebraska Over 50 Lake Hasting Park 

Duncan Park 

Parks Superintendent Noise can be a problem during 

ball games due to high number 

of trains. 

Lincoln, Nebraska Over 50 Sawyer Snell Park 

Ervin E. Peterson 

Park 

Parks Operations 

Coordinator 

Heavily use of ballfields, some 

problems with noise, and 

occasional traffic delays when 

games are letting out and 

encounter a train. 

Edgemont, South 

Dakota 

Over 30 City Park City Hall No impacts identified. 

Hinckley, 

Minnesota 

15 to 30 Memorial Park City Administration No impacts identified. 

Moorhead, 

Minnesota 

10 Oak Grove Park Recreation Supervisor No impacts identified. 

In considering Section 303 resources, FRA must determine if these noise increases would 

result in the substantial impairment of the use the resources. Constructive use does not occur 

merely as a result of increased disturbance or distraction. Such disturbance and distraction 

must substantially impair the existing use of the Section 303 resource. FRA has determined, 

as shown in Appendix E, that no constructive use of wildlife refuges, parks, and recreational 
 Uses of the Section 303 Properties 

Section 303 Statement 6-11 January 2007 

resources would be caused by the Project along the existing rail line. This determination is 

based on the combination of all the considerations noted below: 

• All wildlife refuges, parks, and recreation properties are currently exposed to rail 

noise disturbance. 

• All wildlife refuges, parks, and recreation properties are exposed to a variety of 

noise affects, including noise from recreational activities and users, passing trains, 

and traffic noise. 

• None of the wildlife refuges, parks, and recreation properties currently provides a 

quiet and serene environment due to noise disturbance from a variety of sources. 

• Noise disturbance from increase train traffic will be intermittent, limited to only a 

few minutes per hour under the highest levels of rail traffic. At lower levels, 

disturbance would be even less. 

• Train noise from individual passing trains would likely be lower and occur for 

shorter periods of time, even though more frequently, than under current rail 

operations. 

• Additional noise from passing trains, occurring intermittently for only a few 

minutes at a time would not substantially impair the activities of Section 303 

resources along the rail line, as evidenced by parks and recreation areas along 

other rail lines, some with much higher levels of rail traffic than expected by 

DM&E, which continue to function and provide recreational activities and 

opportunities, although some train disturbance is experienced. 

In comments provided to FRA on the draft Section 303/4(f) for the Project, DOI submitted 

comments previously made to STB on the DEIS in March 2001. In its comments, DOI 

expressed concerns about “audible intrusions on the wilderness experience from train 

whistles” to Badlands National Park and Wilderness Area as a result of the project. DOI 

indicated that the mean natural noise level for Badlands National Park is 35.2 dBA. 

In order to evaluate the potential intrusion of train whistle noise to this Section 303 resource, 

FRA identified the highway-rail grade crossing located closest to Badlands National Park. 

FRA noted that in selecting Alternative C, SEA had required a route for the proposed new 

construction that, although similar in some locations, was located substantially further from 

Badlands National Park than DM&E’s originally proposed route over much of its length. 

FRA identified only one at-grade crossing within 8 miles of Badlands National Park that 

would require train whistle soundings. The crossing of Baseline Road, south of Wasta, South 

Dakota, is approximately 6.2 miles (32,500 feet) from Badlands National Park and 200 feet 

lower in elevation. 
 Uses of the Section 303 Properties 

Section 303 Statement 6-12 January 2007 

To determine the noise level from the train whistle at the closest point in Badlands National 

Park, FRA modeled the potential horn noise.28 As SEA had done extensive noise modeling 

for the EIS, FRA used the highest sound pressure level reported in the EIS for train whistle 

soundings. The pressure used was 112.7 dBA at 100 feet from the source. This sound 

pressure was input into the model, and the resulting sound pressure level at Badlands 

National Park was calculated. 

The model predicted the sound level at Badlands National Park would be a maximum of 35.5 

dBA Leq. This estimate is considered to be conservative as the actual level would be lower. 

Topographic elevation changes between the grade crossing and Badlands National Park 

include ridges and valleys varying from 2,400 feet above mean sea level to over 2,700 feet 

above mean sea level. These changes in topography were not considered in the model and 

would result in substantial noise absorption and reflection between the at-grade crossing and 

the National Park. Additionally, FRA’s new locomotive horn rule29 establishes the 

maximum level for train whistles at 110 dBA, lower than the levels modeled. Based on these 

factors, no audible intrusion, and therefore no constructive use as a result of noise, to 

Badlands National Park is anticipated as a result of the project. 

Vibration

SEA found that any increases in vibration would not create significant impacts, indicating 

that vibration from the proposed project would be imperceptible to human.30 Additionally, 

vibration levels would be too low to result in damage to historic or other structures.31 

Therefore, FRA concludes project-related changes in vibration would not result in 

constructive use. 

Access

SEA also determined that the proposed project would not result in significant impacts to 

vehicle traffic in the form of vehicle delay at road-rail grade crossings.32 The additional 

evaluation of potential vehicle delay described in FRA’s record of decision on the EIS, using 

greater traffic levels than considered by SEA, confirmed this result. As such, FRA 

determined that, although more trains per day would likely delay access to Section 303 

 28 FRA used Computer Aided Design for Noise Abatement (CadnaA), Version 3.5.115, published by 

DataKustik, Ltd., Munich, Germany, to determine the potential noise level that would be experienced 

at Badlands National Park from train whistle soundings. CadnaA is a scaled, three-dimensional 

program which takes into account noise-emitting equipment at a site and predicts sound pressure levels 

at identified noise receptors. The model calculates sound propagation based on ISO 9613-2:1996, 

General Method of Calculation. Atmospheric absorption and ground attenuation are included in the 

model, as well as reflection from hard surfaces. 

29 49 CFR Parts 222 and 229, Use of Locomotive Horns at Highway-Rail Grade Crossings; Final Rule. 

30 FRA did not include vibration as a criterion for constructive use evaluation as vibration expected to 

result from the operation of trains associated with the proposed project was expected to be 

imperceptible to humans (See Draft SEIS, Powder River Basin Expansion Project, Chapter 3, page 3-3 

to 3-4). 

31 Draft SEIS, Powder River Basin Expansion Project, Chapter 3, page 3-3. 

32 FEIS, Powder River Basin Expansion Project, Chapter 9, page 9-57. 
 Uses of the Section 303 Properties 

Section 303 Statement 6-13 January 2007 

property users, these delays would not be significant. As such, no substantial impairment of 

use related to access to Section 303 properties would occur and therefore no constructive use. 

Aesthetics

SEA also considered the potential aesthetic impacts associated with the construction of the 

new line and rehabilitation and increased operation of the existing rail line. SEA found no 

impacts to visibility associated with rehabilitation activities due to little if any change in the 

aesthetics of the area resulting from construction of the new line and rehabilitation and 

increased operation of the existing rail line. SEA had found potential visibility impacts from 

locomotive air pollutants to areas that have high air quality and are visually sensitive, 

including Badland National Park, Wind Cave National Park, Blackelk Wilderness Area, 

Mount Rushmore, Jewel Cave National Park, Devil’s Tower, Northern Cheyenne 

Reservation, and Cloud Peak Wilderness Area33 as a result of construction and operation of 

the new extension rail line. 

FRA investigated whether the potential impacts from new rail line construction would result 

in constructive use to the visually sensitive Section 303 resources evaluated by SEA. In 

conducting this investigation, FRA first reviewed the evaluation contained in the EIS and 

SEA’s conclusions. Of importance are the emissions standards set in April, 1998, by 40 CFR 

Part 92–Control of Air Pollution from Locomotives and Locomotive Engines. This rule set 

emission standards for nitrogen oxides (NOX), particulate matter (PM), carbon monoxide 

(CO), total hydrocarbons (THC), non-methane hydrocarbons (NMHC), and total 

hydrocarbon equivalents (THE) for diesel locomotives. The emissions limits are set at three 

different tiers, depending on the date of locomotive manufacture. The three tiers include: 

• Tier 0–Locomotives manufactured before January 1, 2002. 

• Tier 1–Locomotives manufactured on or after January 1, 2002, and before 

January 1, 2005. 

• Tier 2–Locomotives manufactured after January 1, 2005. 

Table 6-2 includes the emissions limits for each tier. 

TABLE 6-2. 

EMISSION LIMITS FOR LOCOMOTIVES BASED ON TIER (LINE-HAUL CYCLE 

STANDARD) 

Tier Level Emission Limit (g/bhp-hr) 

NOX PM CO THC NMHC THE 

Tier 0 9.5 0.6 5.0 1.0 1.0 1.0 

Tier 1 7.4 0.45 2.2 0.55 0.55 0.55 

Tier 2 5.5 0.20 1.5 0.30 0.30 0.30 

 33 DEIS, Chapter 4, Tables 4.4-11 through 4.4-16. 
 Uses of the Section 303 Properties 

Section 303 Statement 6-14 January 2007 

This regulation was known during the EIS evaluation. However, the manufacture dates of 

the project locomotives were uncertain. The DEIS evaluation assumed 50 percent of the 

locomotives would be Tier 0 and 50 percent would be Tier 1 for emissions calculations using 

the CALPUFF model. Given that the project is now not expected to be in operation until 

approximately 2010, and because of the concern about visual impacts due to locomotive 

pollutants, FRA is requiring DM&E to use only Tier 2 locomotives or better west of Huron, 

South Dakota. This fleet would be assembled or acquired around the time operations are to 

commence and would grow over time. The reduction in emissions compared to those 

assumed for the EIS would be approximately 35 percent for NOX, 62 percent for PM, and 62 

percent for THC. These reductions will significantly reduce overall visibility and air impacts 

to the visually sensitive areas investigated from those projected in the EIS. 

In addition to the reduction in NOX, PM, and hydrocarbons, significant reductions in the 

amount of SO2 that will be emitted will also be realized. In June 2004, EPA promulgated 40 

CFR Part 80, Subpart I–Clean Air Nonroad Diesel Tier 4 Standards. Standards were 

included for locomotives that will drastically reduce the sulfur content of the fuel used in 

locomotives. By June 2007, prior to start up of new rail line operations, the sulfur content in 

diesel fuel will be reduced to 500 parts per million (ppm). Further, Subpart I states that the 

sulfur content of fuel for locomotives cannot exceed 15 ppm by June 2012. The air impacts 

calculated by STB in the EIS used SO2 emissions based on sulfur content of 2,600 ppm. By 

the time the project will be operational, the sulfur limit will be reduced to 500 ppm, resulting 

in a substantial reduction in SO2 emissions (approximately 80 percent) from those projected 

in the EIS. Additional reductions in SO2 emissions to 15 ppm will occur in 2012, shortly 

after initiation of project operations. These very significant reductions in SO2 emissions 

would further reduce the visibility impacts identified in the EIS as these reductions will 

significantly reduce sulfuric acid mist, a significant consideration in visibility modeling. 

Tier 2 emission standards for locomotives and Tier 4 diesel sulfur regulations (implemented 

since the EIS) will significantly reduce emissions from the locomotives projected in the EIS, 

leading to a substantial reduction in the impacts to visually sensitive areas. Visual impacts to 

these areas are expected to be reduced 35 percent or more from the impacts projected in the 

EIS due to changes in emissions. Based on these results, FRA has determined that 

substantial impairment of the visual setting of these Section 303 resources would not occur as 

a result of the project. Therefore, FRA has determined there would be no constructive use to 

these properties. 

In considering potential constructive use from the rail line rehabilitation and increased train 

operations, FRA evaluated other Section 303 resources (city parks, for example) to determine 

if any constructive use impacts would result from the proposed project. FRA determined, as 

had SEA in the EIS, that the rehabilitation and increased operation of the existing rail line 

would have little if any impact on aesthetics. The rail line would look essentially the same 

following rehabilitation as it does today. Additional passing trains would obstruct the view 

of areas across the rail line from those Section 303 resources not already obscured by homes, 

other structures or development, and vegetation. However, trains operating on the existing 

rail line already provide such obstruction. Increased operation of the rail line would only 

increase the number of events. However, increased train speeds would reduce the time of 

each passing train, minimizing individual periods of train obstruction. While these factors 
 Uses of the Section 303 Properties 

Section 303 Statement 6-15 January 2007 

are relevant to the evaluation of proximity effects, the primary aesthetic consideration is that 

the viewshed needs be a significant attribute of the Section 303 property. Along the existing 

rail line, FRA identified no such properties. In fact, the majority of the recreational resources 

along the existing rail line were developed after the rail line was originally constructed. 

Therefore the rail line and passing trains have always been a component of the properties’ 

aesthetics. The addition of more passing trains would not result in any constructive use to 

Section 303 properties as a result of changes in aesthetics as: 

• The aesthetic character of the property would not be substantially altered from the 

current condition. 

• Aesthetics were not determined to be a significant attribute for these resources. 

Wildlife Habitat

SEA conducted an extensive evaluation of the proposed rehabilitation and increased 

operation of the existing rail line’s potential impacts to wildlife as part of the EIS. SEA 

determined that some wildlife would be displaced during reconstruction of the existing rail 

line. During reconstruction, vegetation within the right-of-way would be cleared or 

disturbed, decreasing available habitat for some wildlife species. However, the loss of 

habitat would not likely be significant because similar habitat is available within the project 

area, and portions of the right-of-way would be allowed to revegetate. Increased human 

presence and activity would also likely disturb wildlife. Wildlife occupying adjacent habitat 

could experience sporadic disturbance caused by noise and human activity during 

reconstruction, train operation, and maintenance activities. Generally, while SEA 

acknowledged additional disturbance to wildlife as a result of construction activities and 

passing trains, no significant impacts to wildlife were identified.34 FRA concurs with this 

evaluation. During site visits in April 2006, FRA noted pheasants and other wildlife on the 

existing rail line and rail bed within minutes of passing trains, indicating wildlife were 

accustomed to passing trains, and, although temporarily disturbed by them, the value of 

adjacent habitat was not substantially diminished. Based upon our experience in evaluating 

the impacts of rail operations on wildlife, FRA expects that although additional trains may 

result in more frequent disturbance to local wildlife, such disturbance would not result in a 

substantial diminishment of the value of these areas to wildlife as further discussed below. 

Wildlife refuges, waterfowl production areas, and wildlife management areas are located 

along the existing rail line and are included in Appendix E. Only those areas within 2,000 

feet of the existing line were considered potentially affected by rail line rehabilitation and 

increased operations. Changes in the rail line activities would include increased trains per 

day. However, an increase in quantity of train traffic would not create an intrusion on the 

existing habitat that would substantially diminish the wildlife habitat of the property. While 

noise levels are likely to increase as a result of operations of the Project, no significant 

effects to wildlife species were expected as a result of increased noise levels (DEIS, 2000). 

Due to the presence of the existing rail line and associated noise intrusions, existing wildlife 

 34 DEIS, Powder River Basin Expansion Project, Chapter 3, pages 3.2-68 to 3.2-77, and Chapter 4, 

pages 4.3-65 to 4.3-75. 
 Uses of the Section 303 Properties 

Section 303 Statement 6-16 January 2007 

using these areas have adapted to the rail line. Increases in noise may cause a relocation of 

some waterfowl nests further away from the rail line, but loss of nesting habitat is not 

anticipated. However, the improved rail line operations would reduce the likelihood of a 

derailment, thereby reducing the potential for disturbance to a wildlife refuge area due to 

cleanup of the derailment. Therefore, no wildlife-related uses were identified from proximity 

effects on these properties. 
 Avoidance Alternatives 

Section 303 Statement 7-1 January 2007 

CHAPTER 7 

AVOIDANCE ALTERNATIVES 

7.1 SECTION 106 RESOURCES SUBJECT TO SECTION 303 

As a general matter, the Section 303 analysis requires a more rigorous evaluation of 

alternatives than Section 106. Specifically, Section 106 requires only that effects on historic 

properties be considered and that the SHPO or the Tribal Historic Preservation Officer, as 

well as the ACHP if necessary, be afforded the opportunity to comment. Section 303, in 

contrast, requires that historic properties be used only if there is no prudent and feasible 

alternative. Even though Section 303 was not specifically addressed by STB, the Section 106 

analysis documented in the EIS did evaluate feasible alternatives in consultation with the 

SHPOs and appropriate government agencies with jurisdiction over resources that are also 

covered by Section 303. In addition, the PA includes a process for further evaluating 

impacts, avoidance, and mitigation in the development of treatment plans for Section 106 

protected properties. The PA requires that “the STB, in consultation with the appropriate 

Federal Agency(s), appropriate SHPO(s), appropriate Tribal representative(s) and the DM&E 

determine it is not feasible or prudent to avoid effects by project relocation.”35 Preparation of 

this Section 4(f)/303 Statement involved independent evaluation of the factual accuracy and 

legal sufficiency of the Section 106 analysis and other evaluations relevant to Section 303, 

which were incorporated in the EIS. 

7.1.1 Bridges and Culverts 

In addition to taking no action, there are two general alternatives for avoidance of the use of 

NRHP-eligible bridges, culverts, and other track-related structures: 1) construct a new 

alignment and relocate the existing rail line leaving the historic structure in place or 2) retain 

the structure and minimize alteration to avoid affecting the historic integrity of the structure. 

1) Avoidance Through Relocation to New Alignment 

Avoidance of direct uses by leaving the bridge(s) in place and constructing a new rail line 

and bridges on a new alignment was not carried forward by the STB as an alternative in the 

NEPA analysis. Although numerous communities proposed construction of a new rail line to 

bypass certain developed areas and portions of the existing line, STB found these bypasses to 

be less environmentally preferable than rehabilitation and continued use of the existing rail 

line. Construction of a new alignment for the entire existing rail line was not a reasonable 

alternative in the EIS nor is it a prudent or feasible alternative under Section 303. In 

addition, STB did not grant DM&E authority to construct a new parallel line. 

Relocation of the existing rail line to avoid individual Section 303 uses identified in this 

statement is not a feasible and prudent alternative as the potential impacts would be 

substantially greater than the proposed action. New routes would need to be identified and 

new right-of-way would be required. Unlike roads, rail lines require more gradual curves, 

 35 PA, Part B.1. 
 Avoidance Alternatives 

Section 303 Statement 7-2 January 2007 

and each diversion would affect an extended area to reach a new alignment and then return to 

the existing line. New impacts to the environment would be introduced, such as farmland 

conversions, business and property relocations, wetland and stream crossings, new grade 

crossings, and possibly more Section 303 uses. Decisions would need to be made regarding 

whether or not to abandon the current rail line and bridges or to continue to operate and 

maintain the original alignment. It is likely that the existing redundant rail line would be 

abandoned in most cases as it would be typically be unnecessary for rail operations or 

alternatively its continued use could not be justified by the limited amount of local traffic. 

Abandonment of the original line would raise questions concerning the continued rail service 

and access to existing rail shippers, which may not be facilitated by the new alignment, as 

well as whether the original right-of-way would be returned to the adjacent property owners 

or retained as a Rails-to-Trails property. Additionally, if the rail line and bridges were left in 

place, maintenance and liability concerns and the responsibility for these issues would need 

to be established. Finally, construction of new rail alignment, including all new bridges, 

would approximately double the cost of rehabilitation even before the addition of right-ofway costs. Disposition or stabilization of existing bridges and abandonment of the original 

rail line would increase this cost even more. Any moneys received from recycling existing 

rail line materials would be negligible compared to these costs. 

For these reasons, it is not prudent or feasible to avoid and continue to maintain and secure 

the many historic bridges and related structures that need to be replaced while constructing 

new adjacent rail lines. 

2) Rehabilitation to Avoid Replacement or Alteration with Adverse Effects 

For each bridge type, this Section 4(f)/303 Statement considers whether a prudent and 

feasible rehabilitation alternative to replacement exists. As discussed below, in many cases, 

no prudent or feasible alternative to bridge replacement exists from a safety and technical 

engineering perspective. However, for several bridge types, rehabilitation may be possible 

and will be considered during the detailed design-build stage based on best and safe 

engineering practices. Such alternatives will be included as part of the “Treatment Plans” 

pursuant to the PA.36

As noted in Section 6.1.1, 85 NRHP eligible and 1 presumed eligible through-plate girder, 

deck-plate girder bridges, through-truss, and deck-truss bridges along the existing rail line 

will be further evaluated during the design-build stage. These bridges may be repairable 

 36 FHWA, which also frequently addresses uses of historic bridges, has recognized that even though 

historic bridges and similar structures “are on or eligible for inclusion on the National Register of 

Historic Places, they also must perform as an integral part of a modern transportation system. When 

they do not or cannot, they must be rehabilitated or replaced in order to assure public safety while 

maintaining system continuity and integrity. For the purpose of this Section 303 evaluation, a 

proposed action will ‘use’ a bridge that is on or eligible for inclusion on the National Register of 

Historic Places when the action will impair the historic integrity of the bridge either by rehabilitation 

or demolition. Rehabilitation that does not impair the historic integrity of the bridge as determined by 

procedures implementing the national Historic Preservation Act of 1966, as amended (FHWA), is not 

subject to Section 4(f).” FHWA, Programmatic Section 4(f) Evaluation and Approval for FHWA 

Projects that Necessitate the Use of Historic Bridges at 1 (1983). This Section 303 evaluation takes a 

similar approach to evaluating uses of historic bridges. 
 Avoidance Alternatives 

Section 303 Statement 7-3 January 2007 

because the main structural support member(s) of the bridge is likely to be adequate or can be 

made adequate to handle the increased weight requirements without replacing the entire 

structure. This could avoid significantly changing the aesthetics and use of these bridges. 

DM&E has further identified 14 stone arch bridges that would be retained, and their 

rehabilitation will be further evaluated though the process established by the PA. The 

remaining 376 eligible structures, including all culverts, and 29 presumed eligible timber 

bridges cannot be rehabilitated due to the inadequate size or type of the main structural 

member(s) to handle the new weight requirements or their highly deteriorated condition. The 

design of these structures and their condition also do not allow for rehabilitation or 

replacement of the main structural member without complete removal. The DM&E provided 

additional information regarding timber and steel bridges for this Section 303 analysis 

(Appendix F). The following discussion addresses the bridges and structures by type and 

potential avoidance alternatives. 

7.1.1.1 Bridges 

Timber Bridges–This structure type is barely adequate for the limited 286,000 pound 

loading they receive today let alone the frequent 286,000 pound loading anticipated 

with the Project. No Class I railroad handling significant tonnage is able to 

successfully operate over a Class B Pile Bridge of this type. This precludes the 

possibility of rehabilitation of the structure without significant alterations. An in-kind 

replacement timber structure will not safely carry the anticipated traffic and will 

result in fairly immediate failure. This type of structure will have to be replaced. As 

noted in Section 6.1.1, all 136 timber bridges initially determined to be eligible for 

the NRPH and the 29 additional timber bridges that are now more than 50 years old 

and presumed eligible must be replaced. 

This bridge type includes the following: 

• Timber pile bents with five creosote-treated driven timber piles and one 

treated timber cap across the tops of the piles. 

• Creosote-treated timber stringers, three per rail, spanning between the bents 

supported on the caps. 

• Creosote-treated timber open decks where the ties supporting the rail are 

directly fixed to the stringers. 

The bridges at these locations were generally built in the 1940s, replacing timber 

bridges constructed earlier. The construction is typical of timber railway bridges for 

lightly used railroad lines around the country. The 1940-era construction conformed 

to railroad standards of the day, which did not provide for today’s heavy axle, 100- to 

125-ton car unit trains. The load rating of these bridges is typically around a 

Cooper’s E-55. Current railroad standards for bridge design call for a Cooper’s E-80 

loading. The American Railway and Engineering Maintenance of Way Association 

(AREMA) Manual, Chapter 7, “Timber Structures,” recommends a minimum of 6-

pile per bent and at least 4 stringers per rail for 13-foot spans for new construction of 

timber trestles. 
 Avoidance Alternatives 

Section 303 Statement 7-4 January 2007 

Timber bridge components, due to the natural forces of timber decay and wear on the 

structure, typically have a useful life span of 40 to 50 years. The forces from trains 

cause further structure degradation and progressively reduce the load carrying 

capacity of the structure. None of the bridges of this type are suitable for today’s 

continuing heavy-haul train service, including unit coal trains. 

Figure 7-1. Photo of Typical DM&E Timber Bridge 

The proposed action would replace these bridges typically with precast concrete box 

culverts, bridges comprised of precast concrete ballast decks on steel pile bents, or 

ballast deck steel spans on steel pile bents meeting the design and longevity criteria 

embodied in the AREMA Manual for Railway Engineering and DM&E standards. 

Site conditions, hydraulics and hydrology, and construction methods that minimize 

impacts to existing train traffic would be considered to determine the type of structure 

used. Current railroad practice is to design a structure that will typically have a 100-

year life span and be designed to support a Cooper’s E-80 loading or greater, 

depending on the type of structure. The structures would also be designed to support 

the heavy axle cyclic loading created by Project unit coal trains. 
 Avoidance Alternatives 

Section 303 Statement 7-5 January 2007 

Taking no action regarding these bridges is not prudent or feasible as the existing 

structures barely provide the performance to carry existing traffic loads and will not 

support the proposed Project traffic and loadings. 

Rehabilitation of the existing structures would replace existing members with similar 

material, maintaining the look of the bridges, but it would not increase the load 

carrying capacity. Timber of the sizes used in the 1940s is difficult to find and very 

expensive to obtain, fabricate, and use for construction. Even if available, the weaker 

timber infrastructure would not sustain the heavy haul traffic. This alternative is not 

prudent or feasible, as it would not support the proposed Project traffic or satisfy the 

project purpose. 

To upgrade these bridges, additional piles would need to be driven at each bent, and 

existing piles would also need to be replaced. Additional stringers would be needed 

and existing stringers replaced. To provide for longevity and meet current standards 

for track maintenance, the existing open deck would need to be replaced with a 

ballast deck. Upgrading these structures in place is not feasible as the spacing of the 

existing piling precludes adding additional piles that would provide adequate 

additional support. Upgrading these timber structures would change their appearance, 

compromising their historical integrity. This alternative is also not prudent due to the 

continual maintenance that would be required and high life-cycle cost under the 

future train traffic, the cost and difficulty of obtaining the new large size timbers, and 

the restricted opening that would constrain hydraulic flow. While feasible, this 

alternative would substantially alter the appearance of the existing structures and 

therefore would not avoid use of the bridges. This alternative is not prudent as there 

would be more impact to waterways due to additional pilings being driven, and the 

bridges would be inferior, uneconomical, and difficult to maintain. 

Steel Structures

I-Beam–This bridge type, although sufficient for existing traffic, is too light for the 

sustained heavy haul traffic from the Project. Neither repair nor an in-kind 

replacement will safely carry anticipated Project traffic and will result in fairly 

immediate failure. All 36 of these bridges must be replaced. 

Steel I-Beam bridges, presently designated American Standard (S) beams, were 

typically used in the early part of this century before the advent of wide flange 

structural steel rolled shapes. This early century span type consisted of one or more 

beams per rail supporting treated timber bridge ties on an open deck construction 

supporting the rail. These spans, due to their typical short length, in the 25- to 30-

foot range, are subject to a high number of cyclic loadings. This high cyclic loading 

is exacerbated by their being designed for the light axle loads, typically 40 to 50 

thousand pounds, of the era. This type of structure was used by railroads throughout 

the country during the early part of the century as they met the then-current design 

standards and supplied a bridge span that was longer and more permanent than the 

timber bridges but fit the short span category. Based on engineering review by the 
 Avoidance Alternatives 

Section 303 Statement 7-6 January 2007 

DM&E, none of the bridges in this category are equipped with steel structure 

adequate to accommodate heavy haul traffic on a sustained and safe basis. 

The beams are typically supported by un-mortared and un-reinforced masonry piers 

or timber pile bents. Not all supports have been tested to state with certainty that 

each is unfit for heavy haul purposes, but it is immaterial to the final outcome because 

of the lightness of steel structure for each bridge in this category. Even in the highly 

unlikely event that some base support infrastructure were found that could support 

heavy haul loadings, it would serve no purpose as the steel superstructure is too light. 

The proposed action would typically replace these bridges with precast concrete box 

culverts, bridges comprised of precast concrete ballast decks on steel pile bents, or 

ballast deck steel spans on steel pile bents meeting the design and longevity criteria 

embodied in the AREMA Manual for Railway Engineering and DM&E standards. 

Site conditions, hydraulics and hydrology, and construction methods that minimize 

impacts to existing train traffic will determine the type of structure used. Current 

railroad practice is to design a structure that will typically have a 100-year life span 

and be designed to support a Cooper’s E-80 loading or greater depending on the type 

of structure. The structures would also be designed to support the heavy axle cyclic 

loading created by unit trains proposed for the Project. 

Taking no action regarding these bridges is not feasible or prudent as they have 

reached the point where fatigue failure is a concern with the current levels of traffic. 

In addition, the light design will not support the heavier axle loads and increased 

volume of proposed Project traffic. 

 

Rehabilitation of these bridges would involve the replacement of the existing 

structure members with similar types of beams. However, such beams are no longer 

rolled, and the depth and size of the members, if they were obtainable, would not 

meet current design standards or support Project traffic. It is not possible to repair the 

steel beams. In addition, the existing substructures, with non-reinforced masonry or 

timber pile, will not support the anticipated future loadings. Rehabilitation of these 

bridges is not a feasible or prudent alternative. 

Upgrading these bridges is not feasible or prudent as this would substantially alter the 

appearance of the bridges and would compromise their historical integrity. I-beams 

of the type and size originally used, if one were to add beams to increase the load 

carrying capacity, are not readily available. The substructure would also need to be 

upgraded or replaced, and doing this while maintaining train traffic would require 

relocating the substructure and bridge. 

Through-Plate Girder–This bridge type is generally too light for sustained heavy 

traffic demands from the Project. While DM&E expects that the 18 bridges of this 

type will require replacement (Appendix D), all 35 of these bridges will be further 

evaluated during the design-build phase to determine if any can reasonably be 

repaired instead of replaced. FRA cannot be sure that the historic integrity of any of 
 Avoidance Alternatives 

Section 303 Statement 7-7 January 2007 

these bridges can be maintained and therefore anticipates all through-plate girder 

bridges will be used. 

These bridges were constructed prior to mid-century and were designed to carry 40-

50 thousand pound axle loads. The spans typically range up to 80 feet in length and 

are supported by un-mortared and un-reinforced masonry piers or timber pile bents. 

These structures consist of two main steel girders supporting a steel floor system 

between them that supports an open deck of creosote timber ties supporting the rail. 

The main girders and portions of the floor system were built up of smaller structural 

steel members riveted together to form girders, floorbeams, and stringers. The steel 

members were then connected together to form a span. Through-plate girder bridges 

were commonly used throughout the country for moderate length spans requiring a 

shallower depth providing vertical clearance under the structure. 

Although steel fatigue of the main girders is not a major concern, the internal floor 

system supporting the deck is subject to steel fatigue similar to the I-beam bridges 

and may not carry the proposed traffic. Further engineering analysis will most likely 

reveal that replacement and a change in structure type is necessary. 

If it is determined through further engineering analysis that it is not feasible or 

prudent to keep the existing structure or perform the floor system 

rehabilitation/replacement, then a new structure will be constructed. New structures 

would be either precast concrete box culverts, bridges comprised of precast concrete 

spans with ballast decks on steel pile bents, or ballast deck steel spans on steel pile 

bents that meet the design and longevity criteria embodied in the AREMA Manual for 

Railway Engineering and DM&E standards. 

Deck-Plate Girder–Most of the 29 bridges in this bridge category are too light for 

sustained heavy Project operations and will require replacement or modification. 

Most deck-plate girder spans were selected in the past because the type provided the 

necessary span length and could accommodate the necessary vertical clearance under 

the structure. These 29 bridges and the 1 additional bridge that is now more than 50 

years old and presumed eligible will be further evaluated with additional engineering 

analysis during the design-build phase to determine if any can reasonably be repaired 

instead of replaced. 

The bridges constructed prior to mid-century were designed to carry 40-50 thousand 

pound axle loads. The main girders, normally two per span, were built-up of smaller 

structural steel members riveted together. The main girders, typically spaced 7 to 9 

feet apart, are connected together with steel framing called diaphragms and a top and 

bottom lateral system to form a span. This type of construction is typical of the era 

and type. They were commonly used throughout the country for moderate length 

spans where the taller girders below the rail did not create a clearance problem with 

the feature crossed. 
 Avoidance Alternatives 

Section 303 Statement 7-8 January 2007 

These structures consist of two main girders directly supporting an open deck of 

creosote timber ties supporting the rail. The spans are typically supported by unmortared and un-reinforced masonry piers or timber pile bents. These spans typically 

range up to 80 feet in length with the predominant length in the 30- to 50-foot range. 

Due to the nature of the built-up construction and the typical span length, steel fatigue 

of the main girders is not a major concern. This type of main girder may provide the 

load carrying capacity to support the loads created by the proposed traffic, but 

detailed engineering analysis is necessary to make such determinations. If 

replacement with a new structure is necessary, either precast concrete box culverts, 

bridges comprised of precast concrete spans with ballast decks on steel pile bents, or 

ballast deck steel spans on steel pile bents that meet the design and longevity criteria 

embodied in the AREMA Manual for Railway Engineering and DM&E standards 

would be built. FRA cannot be sure that the historic integrity of any of these bridges 

can be maintained and therefore anticipates all deck-plate girder bridges will be used. 

Through-Truss–Final determinations as to replacement of the 20 bridges of this type 

will be made during the design-build stage of the project, based on best engineering 

practices, to determine those that can reasonably be repaired instead of replaced. 

Initial evaluation indicates that many of these structures may be retained and repaired 

in a fashion that does not materially alter the appearance of the bridge; however, this 

outcome is not certain. 

These steel structures are used where the span lengths are typically longer than 80 

feet. They were utilized to minimize the weight of steel used on longer spans to use 

the erection equipment of the day. These types of structures were used around the 

country on various railroads and are of similar construction. The bridges constructed 

prior to mid-century were designed for to carry axle loads in the 40 to 50 thousand 

pounds range. The initial determination that these through-truss bridges may require 

replacement is based on this design load history. 
 Avoidance Alternatives 

Section 303 Statement 7-9 January 2007 

Figure 7-2. Photo of Typical DM&E Through-Truss Bridge 

The main girders consist of small steel members riveted to form steel shapes framed 

into a truss that is approximately 30 feet tall. Two trusses are framed together with a 

top lateral system, supporting a bottom floor system that supports the creosote tie 

open deck that supports the rail and train traveling through the truss. The floor 

system is similar to the through-plate girder floor system. The trusses typically range 

from 16 feet to 18 feet apart. 

The internal floor system, due to the short span nature of the floorbeams and stringers 

supporting the deck, may not support the loads created by the proposed Project traffic 

and are subject to steel fatigue similar to the I-beam bridges. Therefore a review 

process will be conducted during the design phase of the project to determine the 

approach that meets project criteria while at the same time providing the detailed 

documentation to support the selection of the alternative to meet Section 303 

requirements. 

If it is determined through the above process that it is not feasible or prudent to keep 

the existing structure or perform the floor system rehabilitation/replacement, then a 

new structure will be constructed. New structures will be either precast concrete box 

culverts, bridges comprised of precast concrete spans with ballast decks on steel pile 

bents, or ballast deck steel spans on steel pile bents that meet the design and longevity 
 Avoidance Alternatives 

Section 303 Statement 7-10 January 2007 

criteria embodied in the AREMA Manual for Railway Engineering and DM&E 

standards. FRA cannot be sure that the historic integrity of any of these bridges can 

be maintained and therefore anticipates all through-truss bridges will be used. 

Deck-Truss–The single structure of this type can be characterized in a similar manner 

as the through-truss, except the floor system and trains travel on top of the truss and 

the truss hangs below. The further evaluation of conditions and approach will be the 

same as the through-truss bridges. FRA cannot be sure that the historic integrity of 

this bridge can be maintained and therefore anticipates the deck-truss bridge will be 

used. 

7.1.1.2 Stone Box Culverts 

These 184 structures are buried in the soil, and many have marginal cover between the stone 

cover and the bottom of the cross ties. Many of these culverts are already of marginal 

structural sufficiency. They will not safely carry the anticipated train loads. Neither 

rehabilitation of these structures nor retention are feasible and prudent alternatives, and all 

184 stone box culverts must be replaced. 

7.1.1.3 Stone Arch Bridges 

All but one of these 15 structures most likely will be retained, subject to detailed engineering 

evaluation, but most will require a wing wall be added to the structure to make them 

sufficient for continued use. Final design of the wing wall has not been completed. 

However, the wing wall would generally be placed on top of the stone arch to allow for 

additional embankment on top of the bridge to accommodate the new grade of the rail line. It 

is unknown how tall the wing walls would need to be. However, they would not change the 

bridge structurally or architecturally, and the visual effect is anticipated to only slightly 

change their appearance. Such changes may constitute a use; however, as this use is not 

anticipated to adversely affect these stone arch bridges, the de minimis standard, as discussed 

in Chapter 6, would apply. 

One stone arch structure will require replacement as the structure has experienced significant 

deterioration and would require a different construction type to meet the structural 

requirements for the increased weight. This arch is located near Verdi, Minnesota. Final 

design would be based on best engineering practices, and it is expected that a concrete box 

culvert or short concrete span would be used. There is no feasible and prudent alternative to 

the replacement of this stone arch bridge. 
 Avoidance Alternatives 

Section 303 Statement 7-11 January 2007 

Figure 7-3. Photo of Typical DM&E Stone Arch Bridge 

7.1.1.4 Concrete Bridges 

The two concrete bridges have deteriorated to the point that they can no longer support the 

loads required for this project. As they are concrete it is not possible to remove and replace 

portions of the bridge to increase its strength; the entire structure must be replaced. 

7.1.1.5 Miscellaneous Bridges and Culverts 

The existing concrete and I-beam structure in Minnesota will inevitably fail if no action is 

taken. This bridge is located at the site of a necessary passing siding, which the existing 

bridge cannot accommodate. The likely replacement structure will either be a culvert, 

concrete box culvert, or other concrete span bridge. Because they are so brittle, the two cast 

iron pipe culverts in Minnesota cannot be disturbed or maintained. As a practical matter, 

they are deteriorated in place and must be replaced with functional drainage, expected to be 

in the form of a culvert. There are no feasible or prudent alternatives to replacement of these 

three structures. 

7.1.2 Other Eligible Structures 

No uses of other eligible historic structures were identified; therefore, no avoidance measures 

were considered. 
 Avoidance Alternatives 

Section 303 Statement 7-12 January 2007 

7.1.3 Cultural Resources 

Disturbance of archaeological sites within the existing rail line area of potential effect may be 

unavoidable because, as explained in 7.1.1, an alternative route would result in greater 

environmental and associated impact and potential new Section 303 uses. However, these 

resources would generally not qualify as Section 303 resources because they qualify for 

inclusion on the NRHP under Criteria D only (see footnote 27). See also Chapter 8, 

“Measures to Minimize Harm,” for a discussion of the mitigation measures proposed. In 

addition in many cases, archaeological resources would be unaffected by proposed 

rehabilitation activities because the work will occur within the existing railroad right-of-way. 

FRA has not identified any direct uses of TCPs on the existing rail line and does not 

anticipate any significant proximity effects that would constitute a constructive use of TCPs 

along the existing rail line for the same reasons as outlined in Section 6.2.2 with respect to 

parks, recreational areas, and wildlife and waterfowl refuges. With respect to TCPs that may 

exist in the area of new rail line construction, the preferred new construction alternative was 

selected based on consideration of all environmental factors. During the design-build phase 

of the Project, alternatives for avoidance of direct uses of archaeological sites (including any 

that may constitute Section 303 uses) and TCPs within the limits of new rail line construction 

and existing rail line rehabilitation will be considered and applied when feasible and 

reasonable, as outlined in the PA. When avoidance alternatives are not feasible or 

reasonable, the measures outlined in the PA will be applied for the development of mitigation 

measures. FRA will prepare and circulate an appropriate Section 303 evaluation for any 

TCPs that may be used for the new rail line construction before construction is authorized for 

that segment of the railroad. 

7.2 OTHER SECTION 303 PROPERTIES 

Only temporary limited use of four trails was identified for this property type. These 

temporary uses occur along the existing rail line, which is being rehabilitated to produce 

more efficient and safer operations. No prudent and feasible alternatives exist to avoid these 

temporary uses that would have less environmental impact on the trails than the proposed 

action. It would not be prudent to fail to rehabilitate the track in the locations occupied by 

the trails nor would it be feasible or prudent to attempt to avoid these trails by trying to go 

around them given there locations on the rail line and the very minimal nature of the use. 

Proximity affects to Section 303 properties, including wildlife refuges, waterfowl production 

areas, and Federal, State, and local parks, were also investigated to determine if projectrelated noise, vibration, access restrictions, visual impairment, or habitat intrusion would 

result in constructive use to Section 303 properties. No constructive uses of these properties 

were identified, as explained in detail in Section 6.2.2. No measures or alternatives for 

avoidance of these resources were therefore considered. 
 Measures To Minimize Harm 

Section 303 Statement 8-1 January 2007 

CHAPTER 8 

MEASURES TO MINIMIZE HARM 

8.1 SECTION 106 RESOURCES SUBJECT TO SECTION 303 

The development and approval of the PA is discussed in Section 2.2.2. Development of the 

PA, for the fulfillment of the requirements of Section 106, provides a methodology for 

location, inventory, identification, recording, and evaluation of Section 106 resources that are 

encountered by the Project. The PA outlines a program to satisfy all Section 106 

responsibilities for all aspects of the Project, and FRA has been added as a party to the PA 

through an amendment to the agreement. 

All Section 106 historic structures are also protected by Section 303. The Project involves 

the use of certain existing bridges and culverts due to rehabilitation of the existing rail line. 

Part B of the PA outlines the process for development of treatment plans for historic 

properties, including historic structures. Treatments are, in essence, measures to minimize 

and/or mitigate the adverse effects to the property. The treatment plan development process 

includes a stringent review process with the appropriate review agency (commonly the 

SHPO) with jurisdiction and with STB and now FRA. 

Through implementation of the PA, feasible and prudent alternatives to avoid impacts to 

Section 106 resources will be identified. As an example, Part B.1 of the PA provides “Each 

Treatment Plan will address the historic property adversely affected and set forth means to 

mitigate the undertakings’ effects where STB, in consultation with the appropriate Federal 

agency(s), appropriate SHPO(s), appropriate Tribal representative(s) and DM&E determine it 

is not feasible or prudent to avoid effects by project relocation.” Provided none exist, each 

treatment plan must set forth means to mitigate the undertaking’s adverse effect. In doing so, 

all measures to minimize the adverse effect or harm will be identified, reviewed by 

appropriate agencies, and implemented. FRA will ensure through its participation in the PA 

that all possible planning is carried out to minimize harm to section 303 resources. 

There are a number of potential mitigation measures that might be adopted based upon 

experiences with other historic bridges. For bridges that are to be rehabilitated, the historic 

integrity of the bridge can be preserved to the greatest extent possible, consistent with 

unavoidable transportation needs, safety and load requirements. For bridges that are to be 

rehabilitated to the point that the historic integrity is affected or that are to be moved or 

demolished, fully adequate records of the bridge can be made in accordance with the Historic 

American Engineering Record (HAER) standards, or other suitable means developed through 

the PA process. For bridges that are to be replaced, the existing bridge could be made 

available for an alternative use, provided a responsible party agrees to maintain and preserve 

the bridge. 

In addition, the USFS provided mitigation measures within its Record of Decision for the 

Project (September 2003) that includes monitoring of construction sites for archaeological 

and historic resources. 
 Measures To Minimize Harm 

Section 303 Statement 8-2 January 2007 

8.2 OTHER SECTION 303 PROPERTIES 

In addition to the avoidance measures generally considered during development of 

alternatives, the following presents minimization measures for the uses identified in Section 

6.2, “Other Section 303 Properties.” 

8.2.1 Uses 

The following minimization measures were identified for the direct uses of Section 303 

properties (other than historic structures and cultural resources): 

• Missouri River Trail–Connectivity of the trail would remain intact as crossings 

would be accommodated during construction. Construction at the trail location is 

anticipated to take less than 1 day. 

• Rochester Bike and Walking Trail–Connectivity of the trail would remain intact 

as crossings would be accommodated during construction. Construction at the 

trail location is anticipated to take less than 1 day. 

• Cottonwood Path–Connectivity of the trail would remain intact via a detour of the 

trail. The trail detour is approximately 5,000 feet long and would be in use during 

construction at the trail crossing. Construction at the trail location is anticipated 

to take 32 weeks. However, the trail would experience alternating 4-week 

closures and 4-week openings throughout the construction period. A temporary 

trail detour has been identified and would be approximately 5,000 feet long. 

• Sakatah Singing Hills State Trail–With the existing rail corridor alternative at 

Mankato (M-3), connectivity of the trail would remain, as the crossing would be 

accommodated during construction. Closure of the trail crossing during 

construction would only last 1 or 2 days. However should the Southern Mankato 

Route (M-2) be implemented, no use would occur as the trail would not be 

crossed. 

8.2.2 Proximity Effects 

No uses of Section 303 properties due to proximity effects were identified by FRA, as 

discussed earlier. However, minimization measures would still be implemented as imposed 

by STB as conditions to its 2006 Decision (see Appendix A). Specific mitigation measures 

identified that would minimize potential proximity effects to Section 303 properties are: 

y Cultural resources mitigation measures (Condition numbers 105-108). 

y Coordination with Federal, State, and local land managers for development of 

plans to provide alternative access to recreation lands that will have lost or 

reduced access during Project-related construction, reconstruction activities, or 

operation of unit coal trains. 

y Coordination with affected communities regarding the Project-related 

construction schedule to minimize, to the extent practicable, construction-related 

noise disturbances in residential areas. 
 Measures To Minimize Harm 

Section 303 Statement 8-3 January 2007 

y Development of a Construction Noise and Vibration Control Plan to minimize 

construction noise and vibration in communities along the rail line. 

y Development of a habitat restoration plan designed to compensate for the loss of 

trees, shrubs, and other woody vegetation, prairies, and other important wildlife 

habitats as a result of construction- and reconstruction-related activities. 

y Prior to new rail line construction, coordination with resource agencies to develop 

underpass and overpass designs and locations to protect wildlife and provide 

access to water sources. 

These conditions, as well as all other conditions and monitoring imposed in the STB 

decision, were developed and would be implemented to minimize effects to all resources, 

including those qualifying as Section 303 properties. 
 Determination 

Section 303 Statement 9-1 January 2007 

CHAPTER 9 

303 DETERMINATION 

FRA has concluded that no feasible and prudent alternatives exist for the replacement of all 

timber and I-beam bridges, a stone arch bridge near Verdi, Minnesota, stone box culverts, a 

concrete/I-beam bridge, and cast iron pipe culverts found along the existing DM&E rail line 

proposed for rehabilitation. Replacement of these structures is required due to significant 

deterioration precluding rehabilitation of the structure, inadequacy of the structure design to 

handle the increased track loading, or inability to rehabilitate or replace the main structural 

member of the bridge in kind to adequately and safely handle the increased weight without 

essentially dismantling and replacing the bridge structure. 

Additionally, for the same reasons, it is likely that replacement or substantial modification 

that would adversely affect the historic integrity of numerous through-plate girder, deck-plate 

girder, through-truss, and concrete bridges will be required. FRA has concluded that no 

feasible and prudent alternative exists to substantial modification or replacement of these 

bridges. If possible, the structures will be retained and rehabilitated and through the PA 

process measures to minimize harm may be identified that would maintain the historic 

condition of some of these bridges resulting in only a de minimis impact. 

Several stone arch bridges will require construction of wing walls to accommodate changes 

in rail grade. These wing walls will likely cause only minor alterations in the visual 

character of the bridge and not lead to an adverse effect finding. This would result in only a 

de minimis impact. 

Minor uses will also occur to the Missouri River Trail, Rochester Bike and Walking Trail, 

Cottonwood Path, and potentially the Sakatah Singing Hills State Trail due to temporary trail 

closures during construction. FRA has concluded there are no feasible and prudent 

alternatives to closing and/or providing detours to trails during construction. However, 

following construction, trails would be reopened at these locations with no permanent change 

in the trail locations or routes. Other Section 303 resources, such as wildlife refuges, 

waterfowl production areas, wildlife management areas, State parks, or local parks were 

evaluated in the EIS to determine if significant proximity affects would occur to these 

resources. No significant proximity effects or other uses to these resources were identified, 

although some potential minor noise effects could occur that would be minimized with 

application of mitigation measures imposed by STB. 

Finally, no direct uses of NRHP archeological resources were identified. Additional surveys 

for these resources will be completed following completion of preliminary engineering, 

potential eligibility for listing on the NRHP determined, opportunities for avoidance 

evaluated, and any direct uses to archaeological sites identified, according to the procedures 

outlined in the PA executed for the project. At this time, no uses under Section 303 are 

anticipated to occur to archaeological sites or TCPs as they are expected to be eligible for the 

NRHP only under Criteria D. However, all archaeological sites and TCPs determined 

eligible for the NRHP would be addressed as part of the PA. 

CHAPTER 10 

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STB SEA. December 30, 2005. Final Supplemental Environmental Impact Statement for the 

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U.S.D.A. Forest Service. September 2003. Record of Decision: Dakota, Minnesota & 

Eastern Railroad Powder River Basin Expansion Project; Nebraska National Forest, 

Buffalo Gap National Grassland–South Dakota; and Medicine Bow-Routt National 

Forests and Thunder Basin National Grassland–Wyoming. 

U.S. Department of Energy, Energy Information Administration. December 1998. Annual 

Energy Outlook 1999, With Projections to 2020. DOE/EIA-0383(99). 

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