DOT 23 CFR PART 774-2011 PARKS RECREATION AREAS WILDLIFE AND WATERFOWL REFUGES AND HISTORIC SITES (SECTION 4(F)).pdf

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1、443 Federal Highway Administration, DOT Pt. 774 (b) A State DOT may amend its ap-plication no earlier than one year after a MOU has been executed to request additional highway projects, classes of highway projects, or more environ-mental responsibilities. However, prior to making any such amendments

2、, the State DOT must provide notice and so-licit public comments with respect to the intended amendments. In submit-ting the amendment to the FHWA, the State DOT must provide copies of all comments received and note the changes, if any, that were made in re-sponse to the comments. APPENDIX A TO PART

3、 773FHWA ENVI-RONMENTAL RESPONSIBILITIES THAT MAY BE ASSIGNED UNDER SECTION 6005 Federal Procedures National Environmental Policy Act (NEPA), 42 U.S.C. 432143351. FHWA Environmental Regulations at 23 CFR Part 771, 772 and 777 CEQ Regulations at 40 CFR 15001508 Clean Air Act, 42 U.S.C. 74017671(q). A

4、ny de-terminations that do not involve conformity. Noise Compliance with the noise regulations at 23 CFR part 772 Wildlife Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 15311544, and Section 1536 Marine Mammal Protection Act, 16 U.S.C. 1361 Anadromous Fish Conservation Act, 16 U.S.C. 75

5、7(a)757(g) Fish and Wildlife Coordination Act, 16 U.S.C. 661667(d) Migratory Bird Treaty Act, 16 U.S.C. 703712 Magnuson-Stevenson Fishery Conservation and Management Act of 1976, as amend-ed, 16 U.S.C. 1801 et seq. Historic and Cultural Resources Section 106 of the National Historic Preser-vation Ac

6、t of 1966, as amended, 16 U.S.C. 470(f) et seq. Archeological Resources Protection Act of 1977, 16 U.S.C. 470(aa)11 Archeological and Historic Preservation Act, 16 U.S.C. 469469(c) Native American Grave Protection and Re-patriation Act (NAGPRA), 25 U.S.C. 3001 3013 Social and Economic Impacts Americ

7、an Indian Religious Freedom Act, 42 U.S.C. 1996 Farmland Protection Policy Act (FPPA), 7 U.S.C. 42014209 Water Resources and Wetlands Clean Water Act, 33 U.S.C. 12511377 Section 404 Section 401 Section 319 Coastal Barrier Resources Act, 16 U.S.C. 35013510 Coastal Zone Management Act, 16 U.S.C. 14511

8、465 Safe Drinking Water Act (SDWA), 42 U.S.C. 300(f)300(j)(6) Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. 403 Wild and Scenic Rivers Act, 16 U.S.C. 1271 1287 Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931 TEA21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133(b)(11) Flood Dis

9、aster Protection Act, 42 U.S.C. 40014128 Parklands Section 4(f) of the Department of Transpor-tation Act of 1966, 49 U.S.C. 303 Land and Water Conservation Fund (LWCF), 16 U.S.C. 46014604 Hazardous Materials Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 96

10、019675 Superfund Amendments and Reauthorization Act of 1986 (SARA) Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 69016992(k) Executive Orders Relating to Highway Projects E.O. 11990 Protection of Wetlands E.O. 11988 Floodplain Management E.O. 12898 Federal Actions to Address Envi-ronmenta

11、l Justice in Minority Popu-lations and Low Income Populations E.O. 13112 Invasive Species PART 774PARKS, RECREATION AREAS, WILDLIFE AND WATER-FOWL REFUGES, AND HISTORIC SITES (SECTION 4(F) Sec. 774.1 Purpose. 774.3 Section 4(f) approvals. 774.5 Coordination. 774.7 Documentation. 774.9 Timing. 774.11

12、 Applicability. 774.13 Exceptions. 774.15 Constructive use determinations. 774.17 Definitions. VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00453 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permi

13、tted without license from IHS-,-,-444 23 CFR Ch. I (4111 Edition) 774.1 1FHWA has issued five programmatic Sec-tion 4(f) evaluations: (1) Final Nationwide Programmatic Section 4(f) Evaluation and Determination for Federal-Aid Transpor-tation Projects That Have a Net Benefit to a Section 4(f) Propert

14、y; (2) Nationwide Section 4(f) Evaluations and Approvals for Federally- Aided Highway Projects With Minor Involve-ment With Public Parks, Recreation Lands, Wildlife and Waterfowl Refuges, and Historic Sites; (3) Final Nationwide Section 4(f) Eval-uation and Approval for Federally-Aided Highway Proje

15、cts With Minor Involvements With Historic Sites; (4) Historic Bridges; Programmatic Section 4(f) Evaluation and Approval; and (5) Section 4(f) Statement and Determination for Independent Bikeway or Walkway Construction Projects. AUTHORITY: 23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and 204(h)(2);

16、49 U.S.C. 303; Section 6009 of the Safe, Accountable, Flexible, Effi-cient Transportation Equity Act: A Legacy for Users (Pub. L. 10959, Aug. 10, 2005, 119 Stat. 1144); 49 CFR 1.48 and 1.51. SOURCE: 73 FR 13395, Mar. 12, 2008, unless otherwise noted. 774.1 Purpose. The purpose of this part is to imp

17、le-ment 23 U.S.C. 138 and 49 U.S.C. 303, which were originally enacted as Sec-tion 4(f) of the Department of Trans-portation Act of 1966 and are still com-monly referred to as Section 4(f). 774.3 Section 4(f) approvals. The Administration may not approve the use, as defined in 774.17, of Section 4(f

18、) property unless a determination is made under paragraph (a) or (b) of this section. (a) The Administration determines that: (1) There is no feasible and prudent avoidance alternative, as defined in 774.17, to the use of land from the property; and (2) The action includes all possible planning, as

19、defined in 774.17, to mini-mize harm to the property resulting from such use; or (b) The Administration determines that the use of the property, including any measure(s) to minimize harm (such as any avoidance, minimization, miti-gation, or enhancement measures) committed to by the applicant, will h

20、ave a de minimis impact, as defined in 774.17, on the property. (c) If the analysis in paragraph (a)(1) of this section concludes that there is no feasible and prudent avoidance al-ternative, then the Administration may approve, from among the remain-ing alternatives that use Section 4(f) property,

21、only the alternative that: (1) Causes the least overall harm in light of the statutes preservation pur-pose. The least overall harm is deter-mined by balancing the following fac-tors: (i) The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in ben

22、efits to the property); (ii) The relative severity of the re-maining harm, after mitigation, to the protected activities, attributes, or fea-tures that qualify each Section 4(f) property for protection; (iii) The relative significance of each Section 4(f) property; (iv) The views of the official(s)

23、with jurisdiction over each Section 4(f) property; (v) The degree to which each alter-native meets the purpose and need for the project; (vi) After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f); and (vii) Substantial differences in costs among

24、 the alternatives. (2) The alternative selected must in-clude all possible planning, as defined in 774.17, to minimize harm to Section 4(f) property. (d) Programmatic Section 4(f) eval-uations are a time-saving procedural alternative to preparing individual Section 4(f) evaluations under para-graph

25、(a) of this section for certain minor uses of Section 4(f) property. Programmatic Section 4(f) evaluations are developed by the Administration based on experience with a specific set of conditions that includes project type, degree of use and impact, and evaluation of avoidance alternatives.1An appr

26、oved programmatic Section 4(f) evaluation may be relied upon to cover a particular project only if the specific conditions in the programmatic eval-uation are met (1) The determination whether a pro-grammatic Section 4(f) evaluation ap-plies to the use of a specific Section 4(f) property shall be do

27、cumented as VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00454 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-445 Federal Highway Administration, DOT 774.7 spe

28、cified in the applicable pro-grammatic Section 4(f) evaluation. (2) The Administration may develop additional programmatic Section 4(f) evaluations. Proposed new or revised programmatic Section 4(f) evaluations will be coordinated with the Depart-ment of Interior, Department of Agri-culture, and Dep

29、artment of Housing and Urban Development, and published in the FEDERAL REGISTER for comment prior to being finalized. New or revised programmatic Section 4(f) evaluations shall be reviewed for legal sufficiency and approved by the Headquarters Of-fice of the Administration. (e) The coordination requ

30、irements in 774.5 must be completed before the Administration may make Section 4(f) approvals under this section. Require-ments for the documentation and tim-ing of Section 4(f) approvals are lo-cated in 774.7 and 774.9, respectively. 73 FR 13395, Mar. 12, 2008, as amended at 73 FR 31610, June 3, 20

31、08 774.5 Coordination. (a) Prior to making Section 4(f) ap-provals under 774.3(a), the Section 4(f) evaluation shall be provided for coordi-nation and comment to the official(s) with jurisdiction over the Section 4(f) resource and to the Department of the Interior, and as appropriate to the De-partm

32、ent of Agriculture and the De-partment of Housing and Urban Devel-opment. The Administration shall pro-vide a minimum of 45 days for receipt of comments. If comments are not re-ceived within 15 days after the com-ment deadline, the Administration may assume a lack of objection and proceed with the a

33、ction. (b) Prior to making de minimis impact determinations under 774.3(b), the fol-lowing coordination shall be under-taken: (1) For historic properties: (i) The consulting parties identified in accordance with 36 CFR part 800 must be consulted; and (ii) The Administration must receive written conc

34、urrence from the pertinent State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO), and from the Advisory Council on Historic Preservation (ACHP) if participating in the con-sultation process, in a finding of no adverse effect or no historic prop-erties affected in

35、accordance with 36 CFR part 800. The Administration shall inform these officials of its intent to make a de minimis impact determina-tion based on their concurrence in the finding of no adverse effect or no historic properties affected. (iii) Public notice and comment, be-yond that required by 36 CF

36、R part 800, is not required. (2) For parks, recreation areas, and wildlife and waterfowl refuges: (i) Public notice and an opportunity for public review and comment con-cerning the effects on the protected ac-tivities, features, or attributes of the property must be provided. This re-quirement can b

37、e satisfied in conjunc-tion with other public involvement procedures, such as a comment period provided on a NEPA document. (ii) The Administration shall inform the official(s) with jurisdiction of its intent to make a de minimis impact finding. Following an opportunity for public review and comment

38、 as de-scribed in paragraph (b)(2)(i) of this section, the official(s) with jurisdiction over the Section 4(f) resource must concur in writing that the project will not adversely affect the activities, fea-tures, or attributes that make the property eligible for Section 4(f) pro-tection. This concur

39、rence may be com-bined with other comments on the project provided by the official(s). (c) The application of a pro-grammatic Section 4(f) evaluation to the use of a specific Section 4(f) prop-erty under 774.3(d)(1) shall be coordi-nated as specified in the applicable pro-grammatic Section 4(f) eval

40、uation. (d) When Federal encumbrances on Section 4(f) property are identified, co-ordination with the appropriate Fed-eral agency is required to ascertain the agencys position on the proposed im-pact, as well as to determine if any other Federal requirements may apply to converting the Section 4(f)

41、land to a different function. Any such require-ments must be satisfied, independent of the Section 4(f) approval. 774.7 Documentation. (a) A Section 4(f) evaluation prepared under 774.3(a) shall include sufficient VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00455 Fmt 8010 Sfmt 8010 Y:

42、SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-446 23 CFR Ch. I (4111 Edition) 774.9 supporting documentation to dem-onstrate why there is no feasible and prudent avoidance alternative and shall

43、 summarize the results of all pos-sible planning to minimize harm to the Section 4(f) property. (b) A de minimis impact determina-tion under 774.3(b) shall include suffi-cient supporting documentation to demonstrate that the impacts, after avoidance, minimization, mitigation, or enhancement measures

44、 are taken into account, are de minimis as defined in 774.17; and that the coordination re-quired in 774.5(b) has been completed. (c) If there is no feasible and prudent avoidance alternative the Administra-tion may approve only the alternative that causes the least overall harm in accordance with 7

45、74.3(c). This analysis must be documented in the Section 4(f) evaluation. (d) The Administration shall review all Section 4(f) approvals under 774.3(a) and 774.3(c) for legal suffi-ciency. (e) A Section 4(f) approval may in-volve different levels of detail where the Section 4(f) involvement is ad-dr

46、essed in a tiered EIS under 771.111(g) of this chapter. (1) When the first-tier, broad-scale EIS is prepared, the detailed informa-tion necessary to complete the Section 4(f) approval may not be available at that stage in the development of the action. In such cases, the documenta-tion should addres

47、s the potential im-pacts that a proposed action will have on Section 4(f) property and whether those impacts could have a bearing on the decision to be made. A preliminary Section 4(f) approval may be made at this time as to whether the impacts re-sulting from the use of a Section 4(f) property are

48、de minimis or whether there are feasible and prudent avoid-ance alternatives. This preliminary ap-proval shall include all possible plan-ning to minimize harm to the extent that the level of detail available at the first-tier EIS stage allows. It is recog-nized that such planning at this stage may b

49、e limited to ensuring that oppor-tunities to minimize harm at subse-quent stages in the development proc-ess have not been precluded by deci-sions made at the first-tier stage. This preliminary Section 4(f) approval is then incorporated into the first-tier EIS. (2) The Section 4(f) approval will be finalized in the second-tier study. If no new Section 4(f) use, other than a de minimis impact, is identified in the sec-