Questions and Answers on the Application of the Section 4(f) De Minimis Impact Criteria

Introduction

The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) amendment to the Section 4(f) requirements allows the U.S. Department of Transportation (DOT) to determine that certain uses of Section 4(f) land will have no adverse effect on the protected resource. When this is the case, and the responsible official(s) with jurisdiction[1] over the resource agrees in writing, compliance with Section 4(f) is greatly simplified, as explained in this guidance.

The de minimis[2] impact criteria and associated determination requirements specified in Section 6009(a) of SAFETEA-LU[3] are different for historic sites than for parks, recreation areas, and wildlife and waterfowl refuges. De minimis impacts related to historic sites are defined as the determination of either "no adverse effect" or "no historic properties affected" in compliance with Section 106 of the National Historic Preservation Act (NHPA)[4] . De minimis impacts on publicly owned parks, recreation areas, and wildlife and waterfowl refuges are defined as those that do not "adversely affect the activities, features and attributes" of the Section 4(f) resource.

The following questions and answers provide information and guidance on the process of determining de minimis impacts of highway and transit projects that propose the use of Section 4(f) property. A diagram of the determination process for parks, recreation areas, and wildlife and waterfowl refuges is included for illustration following the questions and answers.

1. General Information Regarding Application of the De Minimis Impact Criteria.

Question A. Are de minimis impact findings limited to any particular type of project or National Environmental Policy Act (NEPA) document?

Answer: No. The de minimis impact criteria may be applied to any project, as appropriate, regardless of the type of environmental document required by the NEPA process as described in the FHWA and FTA Environmental Impact and Related Procedures[5].

Question B. What effect does the de minimis impact provision have on the application of the existing FHWA nationwide programmatic evaluations?

Answer: Existing FHWA programmatic Section 4(f) evaluations [6] remain in effect and may be applied, as appropriate, to the use of Section 4(f) property by a highway project. However, since FTA does not have its own or share FHWA's programmatic evaluations, the programmatic option applies only to FHWA projects and to multimodal projects in which FHWA and FTA are co-lead agencies.

Question C. Is it appropriate to apply the de minimis impact criteria to projects that are already in the project development process?

Answer: Yes. The Section 4(f) statutory amendment was effective immediately upon enactment of SAFETEA-LU and the de minimis impact criteria may be applied to projects currently in the project development process, where the requirements of a de minimis impact finding have been or will be satisfied. The decision to apply the de minimis impact criteria to those projects is a matter of agency choice and professional judgment. The factors that should be considered in decisions to apply the de minimis impact criteria to projects in the "pipeline" include, but are not limited to: 1) the stage of the NEPA or project development process the project is in; 2) the benefits to the project delivery schedule realized by applying the de minimis impact criteria; 3) the impact to the project delivery schedule due to other agency (e.g., SHPO and/or THPO and park authorities) or public concern; 4) the overall benefit to the project realized by the reevaluation of a more viable alternative through a de minimis impact finding; 5) the degree and type of controversy and/or public scrutiny related to the project; and 6) the resulting benefits realized to a Section 4(f) resource by the de minimis impact finding.

While the de minimis impact criteria may be applied to any project meeting the specified requirements, Section 6009(a) of SAFETEA-LU does not require the U.S. DOT to re-open decisions already made concerning Section 4(f) impacts of individual projects. Project sponsors are encouraged to examine projects currently in the environmental process to see if any would benefit from application of the de minimis impact criteria, but the decision must be made on a case-by-case basis.

Question D. Can a de minimis impact finding be made for a project as a whole, where multiple Section 4(f) resources are involved?

Answer: No. Where multiple Section 4(f) resources are present in the study area and potentially used by a transportation project, de minimis impact findings must be made for the individual Section 4(f) resources. The impacts to Section 4(f) resources and any impact avoidance, minimization, and mitigation or enhancement measures must be considered on an individual resource basis and de minimis impact findings made individually for each Section 4(f) resource. However, when there are multiple resources for which de minimis impact findings are appropriate, the procedural requirements of Section 4(f) can and should be completed in a single process, document and circulation, so long as it is clear that distinct determinations are being made. Also in these cases, the written concurrence of the official(s) with jurisdiction may be provided for the project as a whole, so as long as the de minimis impacts findings have been made on an individual resource basis.

Question E. What role does mitigation play in the de minimis impact finding?

Answer: The de minimis impact finding is based on the degree or level of impact including any avoidance, minimization, and mitigation or enhancement measures that are included in the project to address the Section 4(f) use. The expected positive effects of any measures included in a project to mitigate the adverse effects of a Section 4(f) resource must be taken into account when determining whether the impact to the Section 4(f) resource is de minimis. The purpose of taking such measures into account is to encourage the incorporation of Section 4(f) protective measures as part of the project[7] . De minimis impact findings must be expressly conditioned upon the implementation of any measures that were relied upon to reduce the impact to a de minimis level. The implementation of such measures will become the responsibility of the project sponsor, with FHWA or FTA oversight[8].

Question F. How should the de minimis impacts to Section 4(f) resources be considered in the alternative selection process when all feasible and prudent alternatives result in Section 4(f) use?

Answer:For those situations in which multiple Section 4(f) resources will be used by a project and it has been determined that no feasible and prudent avoidance alternatives exist, the de minimis impacts of Section 4(f) resources must be factored into the analysis to determine which alternative results in the least overall harm as described in the FHWA Section 4(f) Policy Paper[9].

In most cases, the de minimis impacts will have little or no influence on the determination of overall harm because the activities, features and attributes of the Section 4(f) resources will not be adversely affected. Also, because potential adverse impacts to the Section 4(f) resources will be completely mitigated or enhanced by inclusion of such measures as part of the project in making de minimis impact findings, the Section 4(f) benefit should be included in the least harm analysis. Where it is not clear which alternative results in the least overall harm, consultation with the FHWA or FTA Headquarters or the FHWA or FTA Office of the Chief Counsel is recommended.

Question G. Can a de minimis impact finding be made for a "constructive use" of Section 4(f) property?

Answer: No. A de minimis impact finding can only be made where the transportation use would not adversely affect the activities, features, and attributes that qualify a property for protection under Section 4(f). Constructive use, by definition, involves impacts to a Section 4(f) resource such that the protected activities, features, and attributes would be substantially impaired[10] . Therefore, a de minimis impact finding would not be appropriate where there is a constructive use. Furthermore, if a potential constructive use can be reduced below a substantial impairment, with the inclusion of mitigation measures, then Section 4(f) would not apply.

Question H. Can a de minimis impact finding be made for a "temporary occupancy" of Section 4(f) property?

Answer: Yes. As long as the de minimis impact criteria are met, the impacts associated with a temporary occupancy of a Section 4(f) resource could be determined to be de minimis. It should be noted, however, that Section 4(f) does not apply to the temporary occupancy of Section 4(f) property when the conditions set forth in the FHWA and FTA Environmental Impact and Related Procedures[11] are satisfied. Therefore, application of the de minimis impact provision for these situations should only be considered when the project does not meet the temporary occupancy exception criteria.

Question I. Who makes the de minimis impact findings?

Answer: The FHWA Division Administrator or FTA Regional Administrator makes the de minimis impact findings. In the determination, FHWA or FTA shall consider any impact avoidance, minimization, and mitigation or enhancement measures that are included in the project to address the impacts and adverse effects on the Section 4(f) resource. The FHWA Division Administrator or FTA Regional Administrator must consider the facts supporting the determination of a de minimis impact, the record that was compiled in the coordination that must precede the determination of de minimis impact, the concurrence of the official(s) with jurisdiction, and use his or her own best judgment in making the de minimis impact finding. It is ultimately the responsibility of the FHWA or FTA to ensure that de minimis impact findings and required concurrences are reasonable.

Coordination with the FHWA or FTA Headquarters or the FHWA or FTA Office of the Chief Counsel is not required for routine de minimis impact findings but is recommended for controversial projects and complex situations.

2. De Minimis Impact Findings for Section 4(f) Uses of Historic Properties.

Question A. What are the requirements for a finding of de minimis impact on a historic site?

Answer: A finding of de minimis impact on a historic site may be made when:

1. The process required by Section 106 of the National Historic Preservation Act[12] results in the determination of "no adverse effect" or "no historic properties affected" with the concurrence of the SHPO and/or THPO, and ACHP if participating in the Section 106 consultation;
2. The SHPO and/or THPO, and ACHP if participating in the Section 106 consultation, is informed of FHWA's or FTA's intent to make a de minimis impact finding based on their written concurrence in the Section 106 determination; and
3. FHWA or FTA has considered the views of any consulting parties participating in the Section 106 consultation.

Question B. How should the concurrence of the SHPO and/or THPO, and ACHP if participating in the Section 106 determination, be documented when the concurrence will be the basis for a de minimis finding?

Answer: Section 4(f)[13] requires that the SHPO and /or THPO, and ACHP if participating, must concur in writing in the Section 106 determination of "no adverse effect" or "no historic properties affected." The request for concurrence in the Section 106 determination should include a statement informing the SHPO or THPO, and ACHP if participating, that the FHWA or FTA intends to make a de minimis finding based upon their concurrence in the Section 106 determination.

Under the Section 106 regulation, concurrence by a SHPO and/or THPO may be assumed if they do not respond within a specified timeframe, but Section 4(f) explicitly requires their written concurrence. It is recommended that transportation officials share this guidance with the SHPOs and THPOs in their States so that these officials fully understand the implication of their concurrence in the Section 106 determinations and the reason for requesting written concurrence.

Question C. Certain Section 106 programmatic agreements (PAs) allow the lead agency to assume the concurrence of the SHPO and/or THPO in the determination of "no adverse affect" or "no historic properties affected" if response to a request for concurrence is not received within a period of time specified in the PA. Does such concurrence through non-response, in accordance with a written and signed Section 106 PA, constitute the "written concurrence" needed to make a de minimis finding?

Answer: In accordance with the provisions of a written and signed programmatic agreement, if the SHPO and/or THPO does not respond to a request for concurrence in the Section 106 determination within the specified time, the non-response together with the written agreement, will be considered written concurrence in the Section 106 determination that will be the basis of the de minimis finding by FHWA or FTA.

FHWA or FTA must inform the SHPOs and THPOs who are parties to such PAs, in writing, that a non-response that would be treated as a concurrence in a "no adverse effect" or "no historic properties affected" determination will also be treated as the written concurrence for purposes of the FHWA or FTA de minimis impact finding. It is recommended that this understanding of the parties be documented by either appending the written notice to the existing PA, or by amending the PA itself.

Question D. For historic properties, will a separate public review process be necessary for the determination of a de minimis impact?

Answer: No. Section 6009(a) of SAFETEA-LU requires the U.S. DOT to consult with the parties participating in the Section 106 process but does not require additional public notice or opportunity for review and comment. Documentation of consulting party involvement is recommended. For projects requiring the preparation and distribution of a NEPA document, the information supporting a de minimis impact finding will be included in the NEPA documentation and the public will be afforded an opportunity to review and comment during the formal NEPA process.

3. De Minimis Impact Findings for Parks, Recreation Areas, and Wildlife and Waterfowl Refuges

Question A. What constitutes a de minimis impact with respect to a park, recreation area, or wildlife and waterfowl refuge?

Answer: An impact to a park, recreation area, or wildlife and waterfowl refuge may be determined to be de minimis if the transportation use of the Section 4(f) resource, including consideration of impact avoidance, minimization, and mitigation or enhancement measures, does not adversely affect the activities, features, and attributes that qualify the resource for protection under Section 4(f). Language included in the SAFETEA-LU Conference Report[14] provides additional insight on the meaning of de minimis impact.

This simple example helps to distinguish the activities, features, and attributes of a Section 4(f) resource that are important to protect from those which can be used without resulting adverse effects. Playground equipment in a public park may be central to the recreational value of the park that Section 4(f) is designed to protect. When impacts are proposed to playground equipment or other essential feature, a de minimis impact finding will, at a minimum, require a commitment to replace the equipment with similar or better equipment at a time and in a location that results in no adverse effect to the recreational activity. A parking lot encroachment or other similar type of land use, on the other hand, could result in a de minimis impact with minimal mitigation, as long as there are no adverse effects on public access and the official(s) with jurisdiction agree.

Question B. What are the requirements for a finding of de minimis impact with respect to a park, recreation area, or wildlife and waterfowl refuge?

Answer: The impacts of a transportation project on a park, recreation area, or wildlife and waterfowl refuge that qualifies for Section 4(f) protection may be determined to be de minimis if:

1. The transportation use of the Section 4(f) resource, together with any impact avoidance, minimization, and mitigation or enhancement measures incorporated into the project, does not adversely affect the activities, features, and attributes that qualify the resource for protection under Section 4(f);
2. The official(s) with jurisdiction over the property are informed of FHWA's or FTA's intent to make the de minimis impact finding based on their written concurrence that the project will not adversely affect the activities, features, and attributes that qualify the property for protection under Section 4(f); and
3. The public has been afforded an opportunity to review and comment on the effects of the project on the protected activities, features, and attributes of the Section 4(f) resource.

Question C. What officials are considered to be "officials with jurisdiction" over a park, recreation area, or wildlife or waterfowl refuge for the purposes of the de minimis impact finding?

Answer: The officials with jurisdiction are the officials of an agency or agencies that own or administer a Section 4(f) property and who are empowered to represent that agency on related matters. In some cases, the agency that owns or administers the land has either delegated or relinquished its authority to another agency. In those cases, FHWA or FTA should review the applicable agreements to determine which agency or agencies have the authority to concur in the assessment of impacts to the property.

Question D. How should Section 6(f) of the Land and Water Conservation Fund Act (LWCFA) or other U.S. Department of Interior (DOI) grants-in-aid programs be treated in de minimis impact findings?

Answer: De minimis impact findings will satisfy Section 4(f) requirements only. For projects that propose the use of land from a property or site purchased or improved with funds under the LWCFA, the Federal Aid in Fish Restoration Act (Dingell-Johnson Act), the Federal Aid in Wildlife Act (Pittman-Robertson Act), or other similar law, or the lands are otherwise encumbered with a Federal interest, coordination with the appropriate Federal agency is required to ascertain the agency's position on the land conversion or transfer. Other federal requirements that may apply to the Section 4(f) land should be determined through consultation with the officials with jurisdiction or appropriate DOI or other federal official. These federal agencies may have regulatory or other requirements for converting land to a different use. These requirements are independent of the de minimis impact finding and must be satisfied.

Question E. Is consultation with DOI routinely required for de minimis impact findings?

Answer: No. As a routine matter, FHWA and FTA do not need to consult with the DOI on de minimis impact findings. Where the Section 4(f) resource involved is owned or administered by the DOI, FHWA or FTA will need the written concurrence of the appropriate DOI official as the official with jurisdiction. If the Section 4(f) resource is encumbered with a Federal interest as a result of a DOI grant, then the answer to Question D applies.

Question F. Does the concurrence of the official(s) with jurisdiction over the Section 4(f) resource need to be in writing?

Answer: Yes. The concurrence of the official(s) with jurisdiction that the protected activities, features, and attributes of the resource are not adversely affected must be in writing. The written concurrence can be in the form of a signed letter on agency letterhead, signatures in concurrence blocks on transportation agency documents, agreements provided via e-mail or other method deemed acceptable by the FHWA Division Administrator or FTA Regional Administrator. Obtaining these agreements in writing is consistent with effective practices related to preparing project administrative records.

Question G. What constitutes compliance with the public notice, review and comment requirements related to de minimis impact findings?

Answer: Information supporting a de minimis impact finding should be included in the appropriate NEPA document prepared for the project. This information includes, at a minimum, a description of the involved Section 4(f) resource(s), the impact(s) to the resources and any impact avoidance, minimization, and mitigation or enhancement measures that are included in the project as part of the de minimis impact finding. The public involvement requirements related to the specific NEPA document and process will, in most cases, be sufficient to satisfy the public notice and comment requirements for the de minimis impact finding.

In general, for highway projects, the public notice and comment process related to de minimis impact findings will be accomplished through the State DOT's approved public involvement process[15].

For those actions that do not routinely require public review and comment (e.g., certain categorical exclusions and reevaluations) but for which a de minimis impact finding will be made, a separate public notice and opportunity for review and comment will be necessary. In these cases, appropriate public involvement should be based on the specifics of the situation and commensurate with the type and location of the Section 4(f) resource(s), impacts and public interest.

All comments received and responses thereto, shall be documented in the same manner that other comments on the proposed action would be handled. Where public involvement was initiated solely for the purpose of a de minimis impact finding, responses or replies to the public comments may not be required, depending on the substantive nature of the comments. All comments and responses shall be documented in the administrative record.

Suggested Section 4(f) De Minimis Impact Determination Process for Parks, Recreation Areas, and Wildlife and Waterfowl Refuges

[1] "Official(s) with jurisdiction" means the SHPO, THPO and ACHP, if participating in the consultation, for historic resources, and is defined in Question 3C for other Section 4(f) resources.

[2] Black's Law Dictionary (8th ed. 1999) defines de minimis as 1. Trifling, minimal. 2. (Of a fact or thing) so insignificant that a court may overlook it in deciding an issue or case. 3. De Minimis Non Curat Lex, The law does not concern itself with trifles.

[3] Section 6009 amends 49 U.S.C. § 303 and 23 U.S.C § 138; see specifically 49 U.S.C. § 303(d) and 23 U.S.C §138(b)

[4] 16 U.S.C. 470f, with implementing regulation at 36 CFR part 800

[5] 23 CFR 771.115

[6] http://environment.fhwa.dot.gov/projdev/4fnspeval.asp

[7] Conference Report of the Committee of Conference on H.R. 3, Report 109-203, page 1057.

[8] 23 CFR 771.109(b)

[9] March 1, 2005, pages 6, 7; http://www.environment.fhwa.dot.gov/projdev/4fpolicy.htm

[10] 23 CFR 771.135(p)(2)

[11] 23 CFR 771.135(p)(7)

[12] 16 U.S.C. 470f, with implementing regulation at 36 CFR part 800

[13] 49 U.S.C 303(d)(2)

[14] Conference Report of the Committee of Conference on H.R. 3, Report 109-203, page 1057.

[15] 23 CFR 771.111(h)(1))