SAFETEA-LU Section 6009
Implementation Study

Phase II Report — September 2011

U.S. Department of Transportation
Federal Highway Administration (FHWA)

U.S. Department of Transportation
Federal Transit Administration (FTA)

U.S. Department of Transportation
Federal Railroad Administration (FRA)

Table of Contents

List of Figures

List of Tables

Abbreviations

Executive Summary

Introduction

Background
Phase I Study Findings
Phase II Report Contents

Phase II Evaluation Methodology

Evaluation Approach
Update the de minimis impact determination inventory and report on the feasible and prudent avoidance alternatives standard inventory
Capture a greater diversity of views regarding impacts of the de minimis impact provision
Capture the views of stakeholders on the impacts of the revised feasible and prudent standards

Survey Instrument

Data Quality and Research Limitations

Inventories

De minimis Impact Determination Inventory

Feasible and Prudent Evaluations Inventory

Survey Results

De minimis Impact Provision Survey Results
Efficiencies Resulting From the de minimis Impact Provision
Post-Construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the de minimis Impact Provision

Feasible and Prudent Avoidance Alternative Standards Survey Results
Knowledge Level of the Updated Feasible and Prudent Standards
Section 4(f) Property Protection under the Updated Feasible and Prudent Standards
Post-construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the Updated Feasible and Prudent Standard
Effect of Assessment Criteria on the Determination of Whether an Avoidance Alternative is Feasible and Prudent
Effect of “Least Overall Harm” Determination Factors

Conclusions

De minimis Impact Provision

Feasible and Prudent Avoidance Alternative Standards

Appendix A: Phase II Survey Instrument

Appendix B: Federal Register Notice, Docket No. FHWA-2010-0057, Request for Comments for a New Information Collection, 60-day notice

Appendix C: Federal Register Notice, Docket No. FHWA-2010-0106, Request for Comments for a New Information Collection, 30-day notice

Appendix D: Notice of OMB Actions

Appendix E: Survey Results for Feasible and Prudent Questions

Appendix F: TRB Phase II Letter Report

Appendix G: U.S. DOT Responses to TRB Phase II Letter Report

List of Figures

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List of Tables

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Abbreviations

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Executive Summary

This document, the Phase II Implementation Study (Phase II), presents findings from the second of two study phases by the U.S. Department of Transportation (DOT) to assess the implementation of Section 6009 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Section 6009 of SAFETEA-LU amended Section 4(f) to: (1) provide a simplified approval process of projects that have de minimis impacts on Section 4(f) property and (2) clarify the factors considered and the standards applied in determining the prudence and feasibility of alternatives that avoid uses of Section 4(f) properties.

The Phase I implementation study (Phase I) was completed in February 2010 and evaluated how the de minimis impact provision was applied nationwide during its first 3 years of implementation. The report also reviewed the implementation process that DOT used to clarify the factors to consider and standards to apply that determine the prudence and feasibility of alternatives to avoid the use of a Section 4(f) property.

During development of Phase I, DOT determined that sufficient information was not available to adequately evaluate the implications of the new prudent and feasible standards since the regulations implementing them had only been in effect for about 6 months. Based on this fact, along with recommendations for strengthening the Phase I findings that the Transportation Research Board (TRB) provided, DOT conducted a survey on the implementation of Section 6009 and its amendments for the Phase II study. Phase II provides an update to the de minimis impact provision evaluation, as well as an assessment of the application of the new prudent and feasible standards.

The Phase II study findings are based on a two-section survey designed to collect information on both the de minimis impact provision and the revised feasible and prudent avoidance alternative standards. A total of 136 individuals from four stakeholder groups—Federal transportation agencies, project sponsors, officials with jurisdiction over Section 4(f) resources, and citizen/advocacy groups-responded to the survey. Although no one stakeholder group's views were valued over the others, the survey sample size across the four groups varied significantly. The main reason for the imbalance in the number of responses across groups is that the initial survey invitation was sent only to transportation agencies because contact information for the other groups was not available. Federal transportation agencies were asked to identify contact information for potential respondents from the other groups. Also, the imbalance is due to the fact that more (at least two) transportation staff are involved in each project, whereas there is usually only one Section 4(f) property official with jurisdiction involved. Staff from State Historic Preservation Offices are typically involved with all of the transportation projects that include historic resources for the State. Furthermore, not every project that uses Section 4(f) resources has a citizen/advocacy group involved.

Sixty respondents (82 percent) to the de minimis impact determination portion of the survey were Federal transportation agency or project sponsor staff (transportation officials). In comparison, the study team received 11 responses from officials with jurisdiction over Section 4(f) resources and two responses from citizen/advocacy groups. For the feasible and prudent avoidance alternatives standards portion of the survey, 87 of the respondents (91 percent) were transportation officials, five were officials with jurisdiction, and three were citizen/advocacy groups.

Based upon analysis of the Phase II survey results, DOT concludes the following:

De minimis Impact Provision

• The Phase II survey results support the efficiency findings reported in Phase I. The majority of transportation officials (80 percent of Federal transportation agency respondents and 83 percent of project sponsor respondents) that responded to the Phase II survey share the perception that the de minimis impact provision has improved the timeliness to complete transportation projects. Several transportation officials reported that the process associated with making a de minimis impact determination often generates similar outcomes as would be reached with alternative processing options; yet, the de minimis impact provision often provides for a more streamlined process to achieve those outcomes. Similarly, the majority of transportation officials (56 percent of Federal transportation agency respondents and 59 percent of project sponsor respondents) reported that the de minimis impact provision reduced the costs associated with completing a project. The majority of officials with jurisdiction did not have information on which to base an answer on the time and cost efficiencies (56 percent and 82 percent, respectively) associated with the de minimis impact provision. One of the citizen/advocacy groups responding to the survey reported that the de minimis impact provision does not result in time or cost savings, while the other noted that they did not have information on which to base an answer on time and cost efficiencies.
• The majority of transportation professionals (67 percent of Federal transportation agency respondents and 59 percent of project sponsor respondents) responding to the Phase II survey reported that the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options. Overall, the officials with jurisdiction perceive that the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options. However, given the small number of officials with jurisdiction that responded to the survey, it is not possible to generalize the feedback collected from these individuals to the larger population.

Feasible and Prudent Avoidance Alternative Standards

• The Phase II survey results suggest that the new feasible and prudent standard protects Section 4(f) resources at least to the same degree they were protected before the feasible and prudent avoidance alternative definition was revised. Generally, Federal transportation agency and project sponsor respondents agreed that the new standards helped to explain what constitutes a feasible and prudent alternative but that it had no substantial effect, positive or negative, on the Section 4(f) resources.
• A third of Federal transportation agency and project sponsor respondents indicated that the new feasible and prudent standard had no effect on the post-construction effectiveness of impact mitigation and avoidance commitments. Two of five officials with jurisdiction respondents indicated that the effectiveness of post-construction impact mitigation and avoidance commitments had decreased. At least half of the respondents from all groups reported that they did not know how the updated feasible and prudent standards had affected impact mitigation and avoidance commitments; most likely due to the limited amount of time that has passed since the updated standards were issued (i.e. a number of projects have not completed construction). However, it is not possible to generalize the feedback collected from these individuals to the larger population due to the small number of officials with jurisdiction that responded to the question.
• Ten assessment criteria were developed to help clarify the determination of whether an avoidance alternative is feasible and prudent as a part of the Final Rule. According to survey results, most respondents from all stakeholder groups believed that each assessment criterion had clarified the determination of whether an avoidance alternative is feasible and prudent.
• The Final Rule includes a “least overall harm” determination that balances seven factors, which are used when all alternatives result in the use of Section 4(f) property and there is no feasible and prudent alternative that avoids a Section 4(f) use. The majority of transportation officials agreed that the opportunity to weigh the factors has had a positive effect on determining which alternative has the least overall harm.

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Introduction

The purpose of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) Section 6009 Phase II Implementation Study (SAFETEA-LU Section 6009(c)) is to provide Congress, the U.S. Department of the Interior (DOI), and the Advisory Council on Historic Preservation with an update on the implementation of the de minimis impact provision and an evaluation of the implementation of the revised feasible and prudent avoidance alternative standards. The study does not intend to serve as a legal audit of compliance. This Phase II report, in combination with the Phase I report, fulfills the requirement for the Secretary to study the implementation of the Section 6009 provisions.

Background

Established in the U.S. Department of Transportation Act of 1966, Section 4(f) protects publicly owned parks, recreational areas, wildlife and waterfowl refuges, and public and private historical sites from use by transportation projects unless the U.S. Department of Transportation (DOT) determines that there is no feasible and prudent avoidance alternative and that all possible planning to minimize harm has occurred. Next to the National Environmental Policy Act (NEPA), Section 4(f) has been the most frequently litigated environmental statute in the Federal Highway and Transit Programs.¹

In 2005, Section 6009 of SAFETEA-LU made the first substantive revision to Section 4(f) since its inception. Section 6009(a) simplified the process and approval of projects that have only de minimis impacts on lands impacted by Section 4(f). Under the new provisions, once DOT determines that a transportation use of Section 4(f) property results in a de minimis impact, analysis of avoidance alternatives are not required and the Section 4(f) evaluation process is complete. A de minimis impact, in general terms, means that the use of a Section 4(f) property by a transportation project will not adversely affect the activities, features, and attributes of the Section 4(f) property.

Section 6009(b) of SAFETEA-LU required DOT to issue regulations to clarify the factors to be considered and the standards to be applied that determine the prudence and feasibility of alternatives that avoid uses of Section 4(f) properties. In March 2008, the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) published a Final Rule² that defines a “feasible and prudent” avoidance alternative as one that “avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property.” The definition emphasizes that the use of Section 4(f) property is to be balanced against competing factors, with a “thumb on the scale” in favor of preserving the Section 4(f) property. The competing factors must pose the threat of severe problems or impacts. The definition describes an alternative as not feasible if it cannot be constructed on the basis of sound engineering judgment. The Final Rule defines an alternative as “not prudent” if:

• It compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need;
• It results in unacceptable safety or operational problems;
• After reasonable mitigation, it still causes:
  • Severe social, economic, or environmental impacts,
  • Severe disruption to established communities,
  • Severe disproportionate impacts to minority or low income populations, or
  • Severe impacts to environmental resources protected under other Federal statutes.
• It results in additional construction, maintenance, or operational costs of an extraordinary magnitude;
• It causes other unique problems or unusual factors, or
• It involves multiple factors of those listed above, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.

The Final Rule also outlines clear criteria to select the alternative that causes the least overall harm. For projects where all of the reasonable alternatives involve some use of Section 4(f) property, the Final Rule lists factors that are to be balanced and weighed when deciding which alternative will cause the least overall harm. The least overall harm alternative is determined by balancing the following factors:

• The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property),
• The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection,
• The relative significance of each Section 4(f) property,
• The views of the official(s) with jurisdiction over each Section 4(f) property,
• The degree to which each alternative meets the purpose and need for the project,
• After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f), and
• Substantial differences in costs among the alternatives.

Section 6009(c) of SAFETEA-LU required the DOT to conduct a study and issue a report on the implementation of the new Section 4(f) provisions and requirements. Specifically, Section 6009(c) stipulated that the following should be evaluated:

• “The processes developed under [Section 6009] and the amendments made by this section and the efficiencies that may result,”
• “The post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects conducted” under Section 6009 and its amendments, and
• “The quantity of projects with impacts that are considered de minimis under this section and the amendments made by this section, including information on the location, size, and cost of the projects.”³

As required in Section 6009 of SAFETEA-LU, DOT conducted the implementation study in two phases. The Phase I study focused primarily on evaluation of the de minimis impact provision and the progress made in its implementation.⁴ There was not sufficient information available at the time the Phase I analysis was being conducted to allow an evaluation of the implementation of the Section 4(f) Final Rule on the feasible and prudent avoidance alternative standards. The Final Rule was effective on April 11, 2008, and very few, if any, Section 4(f) evaluations had been completed under the new regulations. As a result, Phase I presented a review of the process used to develop the Final Rule and discussed how the standards were clarified.

Phase I Study Findings

Phase I addressed the first 3 years of implementation from August 10, 2005, to November 1, 2008. The study team sought to identify the efficiencies and effectiveness that have resulted from implementation of the Section 6009(a) amendments (the de minimis impact provision). During the Phase I study, participants were asked how they would define the terms “efficiency” and “effectiveness” in the context of the de minimis impact provision. Based on feedback, the terms efficiency and effectiveness with respect to the de minimis impact provision were defined as:

• Efficiency. The time and cost savings derived from de minimis impact determinations versus conducting and documenting alternative Section 4(f) processes.
• Effectiveness. Maintaining protection of the Section 4(f) resource in the presence of the transportation project.

In order to identify the efficiencies and effectiveness resulting from implementation of the Section 6009 amendments, the study team interviewed stakeholders from 51 organizations across four groups: Federal transportation agencies, project sponsors, officials with jurisdiction, and citizen/advocacy groups. This sample captured the range of variation among de minimis impact projects. The study team found that the majority of transportation agencies do not collect data regarding the duration or costs associated with the Section 4(f) processes. Given the lack of quantitative data on the duration of and costs associated with the Section 4(f) process, it was not possible to measure the time and costs savings attributable to the de minimis impact provision. However, the majority of transportation officials (79 percent) surveyed as part of Phase I shared the perception that the de minimis impact provision has reduced the amount of time necessary to comply with Section 4(f). Furthermore, 57 percent reported that application of the de minimis impact provision has decreased the cost associated with fulfilling the Section 4(f) requirements. Some of the transportation agencies and officials with jurisdiction that participated in the study found that use of the de minimis impact provision increased their coordination. The result was that the transportation agencies learned more about the activities, features, and/or attributes of the Section 4(f) resources, which provided information and an incentive to design projects sensitive to those elements in order to make a de minimis impact determination.

Officials with jurisdiction that participated in the Phase I interviews did not perceive time and cost savings; however, none reported that the de minimis impact provision created additional work or increased the length of time needed to fulfill their responsibilities. Two officials with jurisdiction reported benefits from the transportation agencies' motivation to protect the resource knowing that a de minimis impact determination could mean a streamlined transportation project.

Phase I results suggests that the de minimis impact provision provides a common sense approach to fulfilling the Section 4(f) requirements for projects that clearly have no adverse impact on the Section 4(f) resources. Phase I results also suggested that the de minimis impact provision can enable transportation agencies to better balance the delivery of transportation projects with protection of publicly-owned parks, recreation areas, wildlife and waterfowl refuges, and public and private historical sites. In addition, for the sample analyzed, the de minimis impact provision has primarily simplified the fulfillment of Section 4(f) requirements, particularly in cases where the official with jurisdiction initiates or sponsors the transportation project. In such cases, the managers of the resource desire the Section 4(f) use, as it results in an improvement to the resource.

Phase II Report Contents

In addition to this introductory section, this Phase II report consists of four primary sections:

Phase II Evaluation Methodology describes the approach the study team took to conduct the analysis upon which the Phase II report findings are based. The section also includes information on data quality and research limitations for both the de minimis impact determination and feasible and prudent analyses.

Inventories provides information on: (1) projects with impacts that are considered de minimis, including information on projects' location, type, and cost, (2) the number of Section 4(f) evaluations, including information on projects' location, type, and cost that have been processed under the updated regulations. The de minimis impact determination inventory includes projects from 2005 (when SAFETEA-LU was adopted) through December 2010, while the Section 4(f) evaluations inventory includes project information from April 11, 2008, (the effective date of the Final Rule) through December 2010.

Survey Results provides results from the stakeholder responses to the DOT's two-section survey, which collected information on the de minimis impact provision and the revised feasible and prudent avoidance alternative standards.

The final section, Conclusions, presents a discussion of the results from the survey and, where sufficient data are available, provides a comparison with Phase I results.

Several appendices are also incorporated as references, including:

• Appendix A: Survey instrument for the de minimis impact provision evaluation and the feasible and prudent avoidance alternative evaluation
• Appendix B: Federal Register Notice, Docket No. FHWA-2010-0057, Request for Comments for a New Information Collection, 60-day notice
• Appendix C: Federal Register Notice, Docket No. FHWA-2010-0106, Request for Comments for a New Information Collection, 30-day notice
• Appendix D: Notice of OMB Action
• Appendix E: Survey Results for Feasible and Prudent Questions
• Appendix F: TRB Phase II Letter Report
• Appendix G: DOT Response to TRB Phase II Letter Report

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Phase II Evaluation Methodology

Evaluation Approach

Phase II provides an update on the implementation of the de minimis impact provision and an evaluation of the implementation of the Final Rule on feasible and prudent avoidance alternative standards. The Phase II study is designed to test the following hypotheses:

De minimis impact determination

• A de minimis impact determination typically reduces the time required to complete the Section 4(f) evaluation
• A de minimis impact determination typically reduces the cost required to complete the Section 4(f) evaluation
• A de minimis impact determination typically at least maintains the protection of the Section 4(f) resource

Feasible and prudent standard

• The revised feasible and prudent standard typically at least maintains the protection of the Section 4(f) resources
• The revised feasible and prudent standards did not negatively affect the post construction effectiveness of Section 4(f) resource impact mitigation and avoidance commitments
• The revised feasible and prudent standard clarifies the determination of whether the Section 4(f) avoidance alternative is feasible and prudent
• The “least overall harm” determination factors clarify the determination of the alternative with the least overall harm
• The “least overall harm” determination factors did not negatively affect the protection of the Section 4(f) resource

The Phase II study methodology addresses the following goals:

1. Update the analysis of FHWA, FTA and Federal Railroad Administration (FRA) databases of projects with de minimis impact findings to identify any changes in national trends and patterns since Phase I and analyze the number of Section 4(f) evaluations developed since the updated feasible and prudent alternative standards were issued,
2. Capture a greater diversity of views regarding impacts of the de minimis impact provision, and
3. Capturing the views of stakeholders on the impacts of the revised feasible and prudent standards.

Based on feedback contained in the TRB Phase I Letter Report on DOT's proposed methodology for Phase II, DOT hired a team of Section 4(f) and social science research and related statistical methodology and surveying experts to provide an independent review of the Phase II methodology, survey instrument, and draft implementation study. The team's input was incorporated accordingly.

Update the de minimus impact determination inventory and report on the feasible and prudent avoidance alternatives standard inventory

Since 2005, FHWA, FTA, and FRA, the DOT modal administrations which made de minimis impact determinations during the study period, have collected data from their field offices on projects where a de minimis impact determination was made. Data collected from each office is compiled and saved in a spreadsheet (hereafter referred to as the “inventory”). The inventory includes information on project name, location, cost, size, NEPA class of action, type of Section 4(f) resource(s) impacted, number of de minimis impact determinations, nature of the de minimis impact and any associated mitigation, date of the Section 4(f) de minimus impact determination, and construction start and end dates.

The DOT does not maintain a comprehensive inventory of projects that require a Section 4(f) evaluation. The study team relied upon data collected by the U.S. Department of the Interior (DOI) for FHWA and FTA. The DOI maintains a Section 4(f) database for all individual Section 4(f) evaluations that the DOI reviews. Information captured includes the date DOI received the Section 4(f) evaluation, the NEPA class of action, and the date the DOI reviewed the evaluation. The DOI data do not include information on the Section 4(f) related time, cost or outcomes, nor does DOI collect information regarding de minimis impact determinations or programmatic Section 4(f) evaluations.

Capture a greater diversity of views regarding impacts of the de minimus impact provision

In its review of Phase I, TRB commented that a larger sample size⁵ and greater diversity across the sampling units might have yielded results from which stronger inferences could be made. In order to collect a greater diversity of viewpoints, in particular in regards to non-transportation officials and user groups, on the effects of the de minimis impact provision, the study team designed an online survey instrument for Phase II to: (1) collect information regarding the post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects where a de minimis impact determination was made, and (2) gather quantifiable data regarding cost and time savings associated with the de minimis impact provision. While Phase I identified a sample of 25 specific projects to evaluate the impacts of the de minimis impact provision, in Phase II, the study team sought to collect feedback from all identified individuals who had first-hand project level experience with projects for which a de minimis impact determination was made.

The Phase II survey requested that respondents reply to the questions based on their overall experience across all projects in which: (a) they played a key role, (b) a de minimis determination was made, and (c) the construction of the project related to the Section 4(f) resource was at least 75 percent complete. Because the study team learned about the lack of actual data on the duration and cost of Section 4(f) processes during Phase I and because the lack of a uniform, meaningful measure of level of protection and use, the survey questions focused on the respondents' perceptions of time savings, cost savings, levels of protection and use. The major benefit of this person-level analysis is that it takes into account that different respondents may perceive the same circumstances differently.”

Capture the views of stakeholders on the impacts of the revised feasible and prudent standards

The DOT does not collect information on the total number of draft and final Section 4(f) evaluations that have been completed since the implementation of the Section 4(f) Final Rule on the feasible and prudent avoidance alternatives standards. As a result, the study team designed a survey instrument to: (1) collect information on Section 4(f) evaluations that have been completed under the new regulations, and (2) capture the opinions of respondents as to their understanding and use of the revised feasible and prudent standards and if and how the Final Rule has clarified their determinations of avoidance alternatives and alternatives with the least overall harm. The study team sought to include input from all individuals who had first-hand project level experience with the application of the new feasible and prudent avoidance alternatives standards.

Survey Instrument

The study team developed a two-section survey to collect information on both the de minimis impact provision and the revised feasible and prudent avoidance alternative standards (see Appendix A). The survey included close-ended, structured questions designed to produce quantifiable information that could be measured and compared across stakeholder groups. The close-ended questions included multiple choice questions and statements that asked respondents to specify their levels of agreement on Likert, or rating scales. Additionally, the survey provided respondents with the opportunity to provide qualitative information to describe the reason for their answers to the close-ended questions. A team of transportation professionals with environmental policy, statistical and social science research, and research analysis backgrounds developed the survey, which additional transportation professionals reviewed.

In accordance with the Paperwork Reduction Act of 1995, DOT obtained approval from the Office of Management and Budget (OMB) before conducting the survey data collection. As part of the approval process, the FHWA published a Federal Register (FR) notice on June 2, 2010, (see Appendix B) to provide the public 60 days to comment on the agency's plans to request OMB clearance for the survey. The FHWA published a second notice in the FR allowing for a 30-day comment period to notify the public that OMB approval is being sought and that comments should be submitted to OMB (see Appendix C). No public comments were received on either FR notice. In October 2010, OMB approved the survey without change (see Appendix D).

The population of interest for the survey were stakeholders who had been involved in: (1) project(s) where a de minimis impact determination was made and construction of the portion of the project related to the Section 4(f) resource was at least 75 percent complete, and/or (2) project(s) that required a Section 4(f) evaluation (either draft or final) since April 11, 2008. The population of interest included staff from the four stakeholder groups:

1. Federal transportation agencies,
2. State and local transportation agencies and transportation authorities, which are referred to here as “project sponsors,”
3. Officials with jurisdiction over Section 4(f) properties, including State Historic Preservation Offices (SHPOs), Tribal Historic Preservation Offices, and Federal, State and local agencies with jurisdiction over park, recreation areas, or wildlife and waterfowl refuges, and
4. Citizen/advocacy groups, including user groups and groups interested in historic resources and State and local parks, recreation areas, and wildlife and waterfowl refuges.

The only population of interest for which the study team had contact information was the potential Federal respondents. In order to identify specific contacts for the other populations of interest, the online survey was initially distributed to environmental and legal staff at FHWA Division Offices, Federal Lands Highway (FLH) Division Offices, FTA Regional Offices, and FRA and Federal Aviation Administration (FAA) Headquarters.⁶ There are 52 FHWA Division Offices, 4 FHWA legal offices, 3 FLH Division Offices, and 10 FTA Regional Offices. The actual number of possible Federal transportation agency respondents is unknown. The survey was not distributed to individual Federal staff members. Instead, it was distributed to potential respondents via emails to agencies' email distribution lists. Direct recipients of the email list notifications could have forwarded the survey to other staff, and thus the population of interest could have been larger than the number of email recipients.

There were 85 Federal transportation agency staff members that responded to the survey. These Federal survey respondents were asked to identify appropriate points of contact for the three additional stakeholder groups for each project with which they had been involved. All individuals that the Federal survey respondents identified were sent a survey. The project sponsors and officials with jurisdiction identified were also asked to identify appropriate points of contact for each project with which they had been involved. The additional individuals that these survey respondents identified were also sent a survey.

There were 140 individuals from non-federal agencies were identified through this process (see Table 1 for details on the survey population).

Table 1. Survey Populations of Interest

The study team sent an email to every individual identified within the populations of interest. The email included a Web link to the online survey and a hard copy of the survey with its instructions as an attachment for those potential respondents that preferred not to file the survey electronically. In the few cases where the emails were undeliverable (due to an incorrect email addresses or because the individual was no longer with the organization), the study team identified another individual at that agency/organization to whom the survey was sent.

All stakeholder groups initially were given 3 weeks to complete the survey. A reminder email was sent to individuals who had not completed the survey after 2 weeks. Individuals who did not complete the survey by the requested due date were sent an additional follow-up email, and the due date to complete the survey was extended 2 weeks. The study team also made phone calls to the citizen and advocate groups who did not complete the survey by the requested date. Based on TRB comments in its letter report review of the draft Phase II report, the study team attempted to further improve the response rate by again contacting non-responding project sponsors, officials with jurisdiction, and citizen/advocacy groups. First, emails with a request to complete the survey, which was made available as a hard copy attachment or electronically via a Web link, were delivered to all previously identified, non-responding persons. After 1 week, the study team called each of the officials with jurisdiction and citizen/advocacy group non-respondents individually to request participation in the survey. Individuals who did not complete the survey after the four follow-up attempts and extended due dates were considered non-respondents.

In addition to conducting surveys, the Phase II methodology initially proposed that the study team would conduct phone interviews to clarify survey responses, collect more detailed information, or develop case studies on select projects, if deemed appropriate. However, the study team ultimately determined that conducting case studies would not provide additional benefits to the research findings. After careful examination of the survey results and comments, the study team determined that additional research was not needed to clarify the information provided by survey respondents. In addition, as noted in TRB's Phase I Letter Report on the proposed Phase II methodology, it would not be possible to generalize findings from a limited number of case studies. For these reasons, no in-depth case studies with survey respondents were performed.

Data Quality and Research Limitations

Data quality limitations associated with the Phase II study:

Quality and Limitations of Inventory Data

• The FHWA, FTA, and FRA have relied on their staff to self-report complete and accurate information on de minimis impact determinations and Section 4(f) evaluation information. In some cases, the data are incomplete and/or reported to varying degrees of accuracy and detail.
• The DOI noted that their database of Section 4(f) evaluation submittals and related information cannot be guaranteed as completely accurate.

Quality and Limitations of Survey Data

• The only population of interest for which the study team had contact information were the potential Federal respondents. The online survey was initially distributed to environmental and legal staff at FHWA Division Offices, FLH Division Offices, FTA Regional Offices, and FRA and FAA Headquarters in order to identify specific contacts for the other populations of interest. Four FHWA Division Offices and three FTA regional offices did not respond to the survey. As such, project sponsors, officials with jurisdiction, and citizen/advocacy groups from States these divisions and regions represented were not included in the survey.
• There were low response rates for the officials with jurisdiction and citizen/advocacy group respondents when compared to transportation professionals' responses (see Table 5). Due to the low response rates (25 percent or less), statistical analyses beyond the review of the descriptive numbers and accompanying comments were not possible, nor is it possible to generalize the feedback collected from these individuals to the larger officials with jurisdiction and citizen/advocacy group populations. These potential respondents' decisions not to participate in the survey, however, should not be construed as a failure of DOT to offer the opportunity. The study team followed up with potential officials with jurisdiction at least four times, and citizen/advocacy group respondents five times, including personalized emails and phone calls to encourage their completion of the survey. The study team surmised the low response rate could be attributed to a number of factors, including:
  • The Federal and project sponsor respondents identified the incorrect official with jurisdiction or citizen/advocacy group persons and/or the potential respondents had not been involved in a project that had applied either the de minimis impact provision or the updated feasible and prudent standard.⁷
  • Lack of understanding of the de minimis impact provision or updated feasible and prudent standard.
  • Ambivalence toward the de minimis impact provision or updated feasible and prudent standard.
  • Minimal role in the de minimis impact determination or the application of the updated feasible and prudent standard and thus did not feel a need to respond to the survey.⁸
  • Changed job or retirement from the position where they encountered the de minimis impact provision or updated feasible and prudent standard that was part of the survey.⁹
• The FAA did not identify any projects with de mininis impact finding or project that used the Section 4(f) amendments. In addition, the transportation officials who responded to the survey did not identify any projects for which a tribal historic preservation officer was the official with jurisdiction. As a result, these stakeholder groups are not represented.
• The first question of each survey section was intended to sort those with first-hand experience from those without experience. Individuals that indicated that they did not have experience were excluded from the remainder of that section of the survey. At least one respondent indicated they had experience with the de minimis impact provision and/or the updated feasible and prudent avoidance alternative standards (and thus was not excluded from the survey section) when in actuality the project(s) for which the individual was responding did not involve a de minimis impact determination.¹⁰ The survey results reported here include this individual's responses, though the project team qualified all project specific comments from this individual.
• Some respondents did not answer all survey questions. Reasons for non-responses to any given survey items are unknown.
• Due to the limited number of projects (up to 122) that have completed a final Section 4(f) evaluation using the revised feasible and prudent standards, the results of the Phase II survey cannot be generalized to the overall population. Instead, findings from the Phase II survey are intended to analyze initial perceptions of the effects of the revised prudent and feasible standards.

Research limitations associated with the Phase II study:

• Some of the Phase II survey questions regarding the efficiencies and effectiveness associated with the de minimis impact provision differed from questions in the Phase I pre-interview questionnaires. As such, a direct comparison between Phase I and Phase II could not be drawn.

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Inventories

De minimis Impact Determination Inventory

Section 6009(c) of SAFETEA-LU required the Secretary of Transportation to prepare a report that evaluated the new provisions in that section of law. The law required that information on the number of projects with Section 4(f) impacts that are considered de minimis, including information on the location, size, and cost of the projects be reported. Since 2005, FHWA, FTA, and FRA have collected data from their offices on the number of projects with Section 4(f) impacts that are considered de minimis. The compiled data, hereafter referred to as the “inventory,” include information on project cost and size, class of action, type of Section 4(f) resource(s) impacted, nature of the de minimis impact and any associated mitigation, date of the Section 4(f) de minimis impact determination, and construction start and end dates.

As of December 2010, Section 4(f) de minimis impact determinations had been made for 822 projects. Of these projects, 789 were highway projects (occurring in 47 States and the District of Columbia), 29 were transit projects (occurring in 13 states), and four were rail projects (occurring in three States). Since Phase I, three States, Delaware, Hawaii, Massachusetts,¹¹ and the District of Columbia, which previously had not had any de minimis impact determinations had such findings. Three States, Arizona, Louisiana, and Nevada, along with Puerto Rico continue to have no de minimis impact determinations. Figure 1 illustrates the distribution of projects with de minimis impact determinations by State.

Of the 822 projects, 635 (77 percent) had a single de minimis impact determination.¹² One hundred and nine projects (13 percent) had two de minimis impact determinations, and 78 projects (10 percent) had more than two determinations (see Figure 2). This distribution is similar to that reported in Phase I.

Approximately 57 percent (467) of the projects with de minimis impact determinations have been for historic property resources, 26 percent (210) for parks, 9 percent (72) for recreation areas, and 2 percent (20) for wildlife and waterfowl refuges. Approximately 5 percent (38) of the projects with de minimis impact determinations have been made on projects related to both historic properties and a park, less than 1 percent (6) for historic properties and recreation areas, less than 1 percent (6) for park and recreation area, and less than ½ percent (3) for historic properties, park, and recreation area. Figure 3 illustrates these data. The distribution of projects by resource type is similar to that reported in Phase I.

Eighty percent (654) of de minimus impact determinations have been made on projects with categorical exclusions (CEs). Environmental assessments (EAs) account for 15 percent (121) of projects, environmental impact statements (EISs) account for 3 percent (28), and re-evaluations account for 2 percent (19) (see Figure 4). The distribution of projects by NEPA class of action is similar to that reported in Phase I.

Table 2 provides a breakdown of project information by number of projects, NEPA class of action, and cost and land area by the type of Section 4(f) resource involved (i.e. historic only, non-historic only, and historic and non-historic), as well as between highway, transit, and rail projects.

Table 2. Class of Action, Cost, and Size of Projects with de minimus Impact Determinations (as of December 2010)

*Not all of the transit projects with both historic and non-historic properties provided cost and/or size information.
**No information on the length/size of the rail project concerning the historic property was provided to the study team.
Note: Class of action percentages are based on the total number of projects, not the total number of de minimus impact determinations.

The size of the land area of the Section 4(f) de minimis impact use for projects in the inventory has ranged from less than one thousandth of an acre to 51 acres. The average size of the de minimis impact use is 1.15 acres. The median is 0.208 acres.

The total project cost for highway projects that had at least one Section 4(f) de minimis impact determination ranged from $27,000 to $2,560,000,000. The median cost for highway projects that involved non-historic property resources was $4,063,000; for highway projects involving historic property resources it was approximately $3,200,000; and for highway projects involving both historic and non-historic resources it was $8,000,000. The total costs for transit projects that had at least one de minimis impact determination ranged from $400,000 to $1,300,000,000. The median cost for transit projects involving non-historic property resources was approximately $382,000,000, and for transit projects involving historic property resources it was $3,100,000. The total costs for rail projects that had at least one de minimis impact determination ranged from $3,457,000 to $6,359,000. The median cost for rail projects involving non-historic property resources was approximately $4,980,000. The cost for the one rail project involving an historic property resource was $270,000.

The distribution of projects with Section 4(f) de minimis impact determinations by highway project type are similar to those reported in Phase I. Bridge rehabilitation/replacement projects account for the largest proportion (23 percent) of the 789 highway projects that have had de minimis impact determinations. Projects classified as “Widening” and “Other” make up the next largest group of projects with de minimis impact determinations (19 percent and 16 percent respectively). For the 29 transit projects and 4 rail projects, facility construction or rehabilitation and expansion projects account for the majority of the projects that have had de minimis impact determinations. These type of projects included transit station modifications, transit stop construction, and railroad siding extensions and bridge rehabilitation projects. Figure 5 shows a combined distribution of project types for highway, transit and rail projects.

Table 3. Average Cost and Length of de minimis Impact Determinations by Project Type (as of December 2010)

Costs are reported in thousands of dollars. Project lengths are reported in miles.
*The cost of the new alignment rail project was not provided to the study team.

Feasible and Prudent Evaluations Inventory

Section 6009(c) of SAFETEA-LU required DOT to provide information on the number of projects that utilized the updated feasible and prudent avoidance alternative standards, including information on the location, size, and cost of the projects. The DOI maintains a Section 4(f) database for all individual Section 4(f) evaluations that DOI reviews. The data that DOI provided to DOT did not include information on the NEPA class of action, the time, cost or outcomes related to the Section 4(f) evaluations. This data was compiled from a review of NEPA documents and from FHWA and FTA staff involved in the projects.

From April 11, 2008, when the updated feasible and prudent avoidance alternative standards took effect, to December 2010, DOI received 198 individual Section 4(f) evaluations, consisting of both final and draft evaluations. The 198 individual Section 4(f) evaluations represent 194 individual projects.¹³ Of these, 158 were highway projects occurring in 40 States, 35 were transit projects occurring in 16 States, and one was a joint FHWA-FTA project. Since the updated feasible and prudent avoidance alternative standards took effect, 11 States have not developed an individual Section 4(f) evaluation. See Figure 6.

Forty percent (79) of the individual Section 4(f) evaluations are related to EISs (either draft or final); 24 percent (48) to EAs; and 36 percent (71) to CEs or were submitted to DOI unaccompanied by a NEPA document.¹⁴ See Table 4.

Table 4. Individual Section 4(f) Evaluations by NEPA Class of Action (from April 11, 2008, to December 31, 2010)

Of the 138 individual Section 4(f) evaluations with reported information on resource type, approximately 51 percent have been for historic property resources, 5 percent for recreation, 4 percent for parks, and 1 percent for wildlife and waterfowl refuges. Approximately 17 percent of individual Section 4(f) evaluations have been for projects related to both historic properties and a park, 8 percent for historic parks and a recreation area, and10 percent for historic properties, parks, and recreation areas. See Figure 7.

Table 5 provides a breakdown of project information for highway and transit individual Section 4(f) evaluations by cost and land area.

Table 5. Cost and Size of Projects with Individual Section 4(f) Evaluations (from April 11, 2008, to December 31, 2010)

* For projects that currently have more than one build alternative under evaluation, the low cost estimate for the range was used.
** Costs are based on information reported for 117 highway projects and 26 transit projects. Acreage is based on information reported for 69 highway project and 14 transit projects.

The size of the 4(f) properties for projects in the inventory that submitted an individual Section 4(f) evaluation ranged from less than two thousandth of an acre to 300 acres. The average size for highway projects was 15.95 acres and 10.59 acres for transit projects.

The total project cost for highway projects that required an individual Section 4(f) evaluation ranged from $400,000 to $8 billion. The median cost for highway projects requiring an individual Section 4(f) evaluation was $61,555,000. The total project costs for transit projects that required an individual Section 4(f) evaluation ranged from $2.6 million to $21 billion. The median cost for transit projects requiring an individual Section 4(f) evaluation was $704.5 million.

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Survey Results

The online survey received 136 responses from individuals. Of these respondents, 73 had first-hand experience with a project where a Section 4(f) de minimis impact determination was made and construction of the portion of the project related to the Section 4(f) resource was at least 75 percent complete. Ninety-five had first-hand experience with a project that required a Section 4(f) evaluation since the new feasible and prudent avoidance alternative standards were implemented (see Table 6). Of the survey respondents, 26 (15 Federal transportation agency officials, 6 project sponsors, and 5 officials with jurisdiction over a Section 4(f) resource) responded that they did not have firsthand experience with a project where a de minimis impact determination was made nor a project that required a Section 4(f) evaluation since the new feasible and prudent avoidance alternative standards were implemented.¹⁵

Table 6. Phase II Survey Response Rate by Stakeholder Group

The response rate for the Federal respondents cannot be determined because the survey was not distributed to individual Federal staff members and thus the number of potential Federal respondents is unknown. However, the Federal responses represent 89 percent of the relevant DOT offices. Specifically, 88 percent of FHWA Division Offices, 100 percent of FHWA FLH Division Offices, 70 percent of FTA Regional Offices, and 100 percent of FRA Offices are represented by the Federal survey respondents. Table 7 provides additional demographic and geographic data on the survey respondents.

Table 7. Geographic and Demographic Data for Phase II Survey Responses by Stakeholder Group

De minimis Impact Provision Survey Results

There were 73 survey respondents that reported having first-hand experience with a project where a de minimis impact determination was made and construction of the portion of the project related to the Section 4(f) resource is at least 75 percent complete. Fifty-eight respondents (84 percent) were Federal transportation agency or project sponsor staff, including:

• 32 respondents from 29 FHWA Division Offices
• 6 respondents from 3 FLH Division Offices
• 4 respondents from 4 FTA Regional Offices
• 1 respondent from FRA Headquarters
• 13 respondents from 11 State DOTs
• 4 respondents from 4 transit agencies

Eleven responses from officials with jurisdiction over Section 4(f) resources were received, including:

• 7 respondents from 7 SHPOs
• 3 respondents from 3 Federal resource agency field offices¹⁶
• 1 respondent from 1 local parks and recreation department

Two responses were received from citizen/advocacy groups; one from a national environmental citizen/advocacy group and one from a historic preservation citizen/advocacy group.

The majority of both Federal transportation agency and project sponsor survey respondents have been involved in one to three projects for which a Section 4(f) de minimis impact determination was made. Only one Federal transportation agency and project sponsor respondent had been involved with more than 10 projects for which a de minimis impact determination was made. The majority of officials with jurisdiction over Section 4(f) resources had been involved with more than three projects (see Figure 8).

Citizen/advocacy groups were not asked to report on the number of projects with de mininis impact findings with which they had been involved.

Efficiencies Resulting from the de minimis Impact Provision

The Phase II study characterizes the term “efficiency” in terms of the time and cost savings realized when making a de minimis impact determination versus conducting and documenting alternative Section 4(f) processing methods (i.e. programmatic Section 4(f) evaluations and individual Section 4(f) evaluations). This definition is based on the feedback received from study participants in Phase I of the Section 6009 evaluation.

In order to assess the effect that the de minimis impact provisions have had on the overall project timeline, the survey asked the following question:

Based on your experience across all projects, a Section 4(f) de minimus impact determination resulted in the following approximate time savings for the completion of the planning, design, and construction of the project, as compared to the potential time to complete the project without the use of the provision.

It was reported by 80 percent of the Federal transportation agency respondents and 82 percent of the project sponsors that the de minimis impact provision has improved the timeliness for completing a project (see Figure 9).

Based on the comments provided by transportation agency staff (both Federal and project sponsors) the time savings associated with the de minimis impact provision are attributed to three items:

• Elimination of the requirement to coordinate with and obtain comments from DOI¹⁷
• Elimination of the FHWA/FTA legal sufficiency review process
• Elimination of the requirement to design and evaluate avoidance alternatives

Four transportation agency respondents noted that the addition of the public comment and review requirements (for public parks, recreation areas, and wildlife and waterfowl refuges) minimized or negated any time savings associated with the de minimis impact provision. Three of these transportation officials noted that many projects for which a de minimis impact determination is made could also be processed through a Section 4(f) programmatic evaluation. Because a programmatic evaluation does not require a public comment period, in some cases, it may be less time-consuming to utilize a Section 4(f) programmatic evaluation than to make a de minimis impact determination.

Several officials with jurisdiction indicated that they do not have direct knowledge on the time savings associated with the de minimis impact provision. One SHPO noted, “Significant time can be saved if a formal, full-blown Section 4(f) impact justification does not have to be made. Significant time can also be saved if problematic alternatives that fully avoid 4(f) properties do not have to be engineered.”

One citizen/advocacy group response stated that it does not save any time, and noted, “it is waste of money om [sic] a bad project.”¹⁸

In order to assess the impact that the de minimis impact provision has had on overall project costs the survey asked the following question:

Based on your experience across all projects, a Section 4(f) de minimus impact determination resulted in the following approximate cost savings for the completion of the planning, design, and construction of the project, as compared to the potential cost¹⁹ to complete the project without the use of the provision.

Fifty-four percent of the Federal respondents and 58 percent of project sponsors reported that the de minimus impact provision has reduced the costs associated with completing a project (see Figure 10).

Federal transportation staff commented that cost savings associated with the de minimis impact provision result from less staff time being spent on paperwork and development of the more detailed analysis required for an individual Section 4(f) evaluation. About cost savings, one project sponsor commented that the use of de minimis impact determination “seldom requires the complete re-design of a project to completely avoid takings from historic properties, which results in savings in both engineering design costs and time. This has been particularly true in the case of corner clips intended to address intersection improvements, where avoidance efforts prior to the de minimis impact determination process frequently resulted in higher levels of displacement for businesses and residences not subject to Section 4(f) regulations.” Another project sponsor noted, “In almost every case the same issues could have been addressed through the use of one of the programmatic 4(f) evaluations at the same cost level. Since no substantial changes to design or construction occur as a result of this process, no savings can be accounted for in those processes. The de minimis impact finding generally places an added burden on the project environmental manager to assure adequate public participation, generally with little or no actual public comments being received, but with additional resource and time cost to the project.”

Post-Construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the de minimus Impact Provision

The Phase II study characterizes the term “effectiveness” as maintaining the current level of Section 4(f) resource protection in the presence of the transportation project. This definition represents a synthesis of the definitions articulated to DOT during stakeholder interviews conducted in Phase I. It is the same definition used in Phase I.

Survey participants were asked a series of questions regarding how the de minimis impact provision has impacted the protection of Section 4(f) resources.

Please select the number on a scale from 1 to 5, where 1 is “NOT AT ALL” and 5 is “COMPLETELY TRUE,” that best represents the accuracy of each statement as it relates to your experience across all projects where a de minimus impact determination was made. Please choose “unknown” if you have no information on which to base an answer.

• The “activities, features, and attributes” of the Section 4(f) resource changed as a result of the transportation project.
• User experience of the Section 4(f) resource has been or will be maintained at the same level as prior to the transportation project.
• Use or demand for the Section 4(f) resource increased as a result of the transportation project.
• The de minimus impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options (i.e., programmatic Section 4(f) evaluations and individual Section 4(f) evaluations).

The “activities, features, and attributes” of the Section 4(f) resource changed as a result of the transportation project.

The majority of Federal respondents and project sponsors reported that the above statement was false²⁰ (i.e. the activities, features, and attributes of the Section 4(f) resource did not change as a result of the transportation project where a de minimis impact determination was made). There was no majority response among the officials with jurisdiction. Thirty-six percent reported that the statement was not true, while 27 percent reported that it was true (see Figure 11). One citizen/advocacy group reported that the statement was not true, while the other reported that it was true.

One SHPO commented, “rarely did a de minimis determination have any effect on a Section 4(f) resource at all, and so only occasionaly [sic] was there a determination where the ‘activities, features, and attributes’ changed in any way.”

User experience of the Section 4(f) resource has been or will be maintained at the same level as prior to the transportation project.

The majority of Federal respondents (70 percent) and project sponsors (81 percent) reported that the above statement was true²¹ (i.e. user experience of the Section 4(f) resource has been or will be maintained at the same level as prior to the transportation project). There was no majority response among the officials with jurisdiction. Thirty-six percent reported that the statement was true, while 36 percent provided a neutral response (see Figure 12). One citizen/advocacy group reported that the statement was not true, while the other provided a neutral response.

One Federal transportation official commented that the “de minimis impact allows minor improvements to occur, especially access safety improvements to park entrances, where those were avoided in most cases before.” Similarly, an official from U.S. Fish and Wildlife Service (FWS) noted that the construction project for which a de minimis impact determination was made “provided refuge visitors with an excellent opportunity to experience and enjoy the resources of the refuge while providing minimal negative impact.”

Use or demand for the Section 4(f) resource increased as a result of the transportation project.²²

The majority of Federal respondents answered “unknown.” These officials noted that they do not survey use or demand for a resource after a project is completed. There was no majority response among the project sponsors and the officials with jurisdiction (see Figure 13). Forty-one percent of project sponsors reported that the above statement was false,²³ while 35 percent answered “unknown.” In comparison, 27 percent of officials with jurisdiction answered that the above was not true, while 36 percent were neutral. The two citizen/advocacy groups reported that the statement was not true.

One SHPO who answered “unknown” noted that “staffers do not routinely visit project areas after commenting during Sec. [sic] 106 or Sec. [sic] 4f reviews. Also, it is sometimes years after the SHPO comments on proposed 4(f) findings or alternatives analyses before project construction begins.”

The de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options (i.e., programmatic Section 4(f) evaluations and individual Section 4(f) evaluations)

The majority of Federal respondents and project sponsors reported that the above statement was true,²⁴ i.e. the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section (f) processing options (i.e., programmatic Section 4(f) evaluations and individual Section 4(f) evaluations) (see Figure 14). One citizen/advocacy group reported that the statement was not true, while the other provided a neutral response.

Several Federal transportation officials and project sponsors provided comments further supporting their view that the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section 4(f) processing options:

• “Application of the de minimis [impact provision] has been successful. Generally use of a protected property does not change for better or worse following application of the de minimis [impact provision].”
• “The de minimis [impact] finding we have made were all very consistent with the outcomes I would have anticipated if we'd gone through a traditional 4(f) process - they just took a lot less processing time to acheive [sic] the same results.”
• “Our de minimis [impact] situations all involved minor strip takes from public parks or refuge areas that in the past would have probably been programmatic minor use situations. In general the same sorts of mitigation/impact minimization measures to minimize harm that would have been used for the programmatic 4(f) evaluations were incorporated in the de minimis [impact] finding.”

Two officials with jurisdiction reported that the statement was false. However, one of the officials, a SHPO, included a comment that “the adoption of the de minimis [sic] [impact] rule for Section 4(f) has been extremely beneficial in our experience. Because a “No Adverse Effect” determination is required to utilize it, we have seen few substantive impacts to historic resources when it has been utilized. In fact, better transportation and historic preservation decisions have often been possible because of the availability of the de minimis [sic] [impact] rule.” The other individual who reported that the statement was not true was an official from the FWS. This individual commented, “I don't believe that Section 4(f) provisions protects 4(f) resources.” However, after a review of the project details for which the individual was responding, it was determined that the particular project did not involve a de minimis impact determination.

Feasible and Prudent Avoidance Alternative Standards Survey Results

Ninety-five respondents reported having first-hand experience with a Section 4(f) evaluation (either draft or final) that applied the revised feasible and prudent standards. Eighty-seven (91 percent) of the respondents were transportation officials:

• 45 respondents from 38 FHWA Division Offices
• 3 respondents from 2 FLH Division Offices
• 8 respondents from 6 FTA Regional Offices
• 6 respondents from FRA Headquarters
• 1 respondent of unknown Federal affiliation
• 15 respondents from 12 State DOTs
• 7 respondents from 4 transit agencies
• 1 respondent from a railroad agency
• 1 respondent of unknown State affiliation

Five respondents were from officials with jurisdiction:

• 4 respondents from four SHPOs
• 1 respondent from a Federal resource agency field office

Three respondents were from citizen/advocacy groups;

• 1 from a national historic preservation citizen/advocacy group
• 2 from local historic preservation citizen/advocacy groups

Knowledge Level of the Updated Feasible and Prudent Standards

Citizen/advocacy groups and Federal transportation agency and project sponsor respondents reported having had the highest knowledge level of the updated feasible and prudent standard, while officials with jurisdiction over Section 4(f) resources and project sponsors reported the lowest median knowledge level²⁵ (see Table 8). Considered together, since April 11, 2008, when the updated feasible and prudent avoidance alternative standards took effect, Federal transportation agency respondents indicated having had the most experience with Section 4(f) evaluations-having been involved with a total of at least 178 evaluations.²⁶ Project sponsors indicated having been involved with at least 75 Section 4(f) evaluations over the same period. Officials with jurisdiction and citizen/advocacy groups reported having been involved with at least 27 and 18 Section 4(f) evaluations, respectively, since the implementation of the updated feasible and prudent standards.

Table 8. Knowledge of the updated feasible and prudent standard

Section 4(f) Property Protection under the Updated Feasible and Prudent Standards

Respondents were asked to rate the degree to which the updated feasible and prudent standards had increased or decreased protection of Section 4(f) properties. Over half of the Federal transportation respondents indicated that the updated standards had no effect on protection of the Section 4(f) property; no Federal respondents ranked the effect lower than a value of three, or no effect on protection. In their comments, Federal respondents echoed their quantitative assessment. One remarked, “The 4(f) revisions have resulted in an improved process. The resources still maintain a strong level of protection.” Another stated, “For the projects that involve parks and refuges, the new ability to work within the new rules has allowed us to leave the properties in a better condition than if we had just avoided them. In the case of historic properties, we have been able to assist with the improvement of the facility, rather than just avoiding. In some past cases (over the past 20 years or so), some of these historic properties have been lost due to natural and man-made influences.” Similarly, more than a third of the project sponsors who responded to the question specified that the updated standards had no effect on resource protection. One project sponsor commented, “Generally, the prudent and feasible standard follows the same process we had already been using. While it has helped internally with making sure the process is correctly followed, it has not had a substantial impact on the use and impacts associated with projects.”

Two of the five officials with jurisdiction respondents and one of three citizen/advocacy group respondents indicated that the updated standards decreased protection of the Section 4(f) property. According to comments received from one FWS official, “in the end no resource protection was gained and potential indirect and cumulative impacts will absolutely accrue over the life of the transportation project” (Figure 15).

Post-construction Effectiveness of Impact Mitigation and Avoidance Commitments Associated with the Updated Feasible and Prudent Standard

Respondents were asked to rate how, if at all, the new feasible and prudent standards had affected the post-construction effectiveness of impact mitigation and avoidance commitments adopted. Respondents were invited to answer regarding projects with construction completed or partially completed. At least half of the respondents from all groups provided a response of “unknown” to this question. For those who responded, nearly a third of both Federal transportation agency and project sponsor respondents indicated that the updated standards had no effect on the post-construction effectiveness of impact mitigation and avoidance commitments. Two officials with jurisdiction respondents indicated that effectiveness was decreased, while the remainder of Federal and project sponsor respondents believed the updated standards increased effectiveness of post-construction impact mitigation and avoidance commitments (Figure 16).

Effect of Assessment Criteria on the Determination of Whether an Avoidance Alternative is Feasible and Prudent

Respondents were asked to rate the degree to which 10 assessment criteria had each individually clarified the determination of whether an avoidance alternative is feasible and prudent. Factoring out survey respondents that answered “unknown” to this question, in most cases, respondents believed the assessment criteria had to some degree each clarified the determination of whether an avoidance alternative is feasible and prudent. Considering individual respondent's rankings, “confused” rankings were indicated for:

• “An alternative is not prudent if it compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need” (one Federal respondent)
• “An alternative is not prudent if it results in unacceptable safety or operational problems” (one official with jurisdiction)
• “An alternative is not prudent if it results in additional construction, maintenance, or operational costs of an extraordinary magnitude” (one Federal and one official with jurisdiction)
• “An alternative is not prudent if it causes other unique problems or unusual factors” (three Federal, one project sponsor, and one official with jurisdiction)

The three citizen/advocacy group respondents provided either a neutral or significantly clarified response for all assessment criteria.

Table 9. Effect of assessment criteria on the determination of whether an avoidance alternative is feasible and prudent, median values

1 = confused 5 = significantly clarified

*n = 62 for “An alternative is not prudent if, after reasonable mitigation, it still causes severe disproportionate impacts to minority or low income populations.”
Note: The project team examined the survey response mode for each of the assessment criteria under an assumption that the data the survey produced is ordinal and not interval; however, several assessment criteria have multiple mode values due to the limited response rate. Median was determined to provide a better measure of central tendency.

Effect of “Least Overall Harm” Determination Factors

Respondents were asked to rate the degree to which the seven factors to be balanced in making “least overall harm” determinations clarified the determination of the alternative with the least overall harm when no project alternative avoids all Section 4(f) resources (see Table 10 and Appendix E for additional results). Factoring out survey respondents that answered “unknown” to this question, Federal and project sponsor respondents each reported the highest median score for four of the seven factors, indicating that they generally believed those factors clarified the least overall harm determination more than the responding officials with jurisdiction and citizen/advocacy groups did. One project sponsor commented that “[t]he 7 factors provide a reasonable set of objective criteria” for determining the least overall harm alternative. Another project sponsor noted “the clarification has had minimal impact except to provide a more substantial basis for the determination. Most helpful has been the ability of projects to meet or exceed the purpose and need as this was not clear before.”

The lowest ranking possible-“confused” the least overall harm determination-was observed four times: once regarding “The relative significance of each Section 4(f) property” factor (project sponsor), once regarding the “After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f)” factor (project sponsor), and twice regarding “The views of the official(s) with jurisdiction over each Section 4(f) property” factor (project sponsor and citizen/advocacy group).

Table 10. Effect of “least overall harm” determination factors when considered individually, median values

1 = confused 5 = significantly clarified

Note: The study team examined the survey response mode for each of the determination factors under an assumption that the data the survey produced is ordinal and not interval; however, several assessment criteria have multiple mode values due to the limited response rate. Median was determined to provide a better measure of central tendency.

The seven factors listed in Table 10 are to be considered together in determining the least overall harm alternative. As such, respondents were also asked to rate two aspects of their implementation:

1. How effective the collective factors had been in making that determination, and
2. How successful the factors had been in protecting the Section 4(f) resource.

Over half of both the Federal and project sponsor respondents indicated that the factors had collectively had a positive effect on determining the least harm alternative. One project sponsor commented that the seven factors together resulted in “all entities coordinating extensively with each other to reach an agreement.” Although a smaller percentage of Federal and project sponsor respondents believed that the factors had collectively had a positive effective in protecting the Section 4(f) resource, no Federal or project sponsor respondents viewed the factors as having anything less than a neutral effect on either the least overall harm determination or Section 4(f) resource protection (see Figure 17). One of five officials with jurisdiction respondents, an official from the FWS, indicated that the factors had collectively had an extremely negative effect on the least harm determination and on protecting the Section 4(f) resource. The three citizen/advocacy group responses were neutral or unknown for both questions, with one indicating that the collective effect of the factors on making the least overall harm determination had been positive.

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Conclusions

De minimis Impact Provision

Since the adoption of SAFETEA-LU, the number of projects per year with a Section 4(f) de minimis impact determination for both highway and transit projects has followed an upward trend. In 2006, there were 78 projects with de minimis impact determinations. In 2010, the last year for which data for all months are available, there were 208 projects with de minimis impact determinations (see Figure 18). The vast majority of projects are CE projects with a single de minimus impact determination. Additionally, de minimis impact determinations include a higher number of historic resources than non-historic resources. These national trends and patterns have remained largely unchanged from those reported in Phase I.

Phase I presented the participants' initial perceptions of the effects of the de minimus impact provision. The findings supported the determination that the de minimis impact provision has predominately streamlined the Section 4(f) process for projects, while maintaining protection of those important resources. The majority of transportation official respondents (79 percent) in Phase I shared the perception that the de minimis impact provision has reduced the amount of time necessary to comply with Section 4(f). Further, 57 percent reported that application of the de minimis impact provision has decreased the cost associated with fulfilling the Section 4(f) requirements. Generally, interviewees reported that the most significant time savings element of the de minimis impact provision has been the elimination of the requirement to design and evaluate alternatives. While transportation officials reported that the estimated time savings were minimal, any time savings in the project development process could be beneficial in an industry that relies on schedule performance.

The limited number of officials with jurisdiction who responded to the survey have not perceived time and cost savings, though none of the officials interviewed found that the de minimis impact provision had created additional work or increased the length of time needed to fulfill their responsibilities.” While not directly experiencing efficiency gains, three officials with jurisdiction reported benefiting from the transportation agencies' motivation to protect the resource knowing that a de minimis impact determination could mean a streamlined transportation project. In addition, the five park, recreation, and refuge officials that were interviewed perceived benefiting from an increased involvement in the Section 4(f) process. Because the de minimis impact provision can encourage improved coordination, transportation agencies may learn more about the activities, features, and attributes of the Section 4(f) resources since they have an incentive to design projects sensitive to those elements in order to make a de minimis impact determination.

In Phase II, the study team sought to increase the diversity of viewpoints to study the efficiency and effectiveness of the de minimis impact provision. None of the four stakeholder groups' views were valued or sought more than any of the others. However, the survey response rate across the four groups varied significantly. Survey responses were collected from a higher ratio of transportation agency staff than officials with jurisdiction over Section 4(f) resources and representatives from citizen/advocacy groups. Based on the number of responses, conclusions can only be drawn from transportation stakeholders. Given the small number of officials with jurisdiction and citizen/advocacy groups responding to the survey, it is not possible to generalize the feedback collected from these individuals to the larger population.

The Phase II survey results support the efficiency findings reported in Phase I. The majority of transportation professionals (both Federal and project sponsors) shared the perception that the de minimis impact provision has improved the timeliness for completing transportation projects. However, as highlighted in Figure 9, the range of time savings reported by survey respondents varied. The majority of Federal transportation agencies and project sponsors reported time savings between 1 and 25 percent. Several of the Federal transportation officials and project sponsors reported that the de minimis process often generates similar outcomes as would be reached with alternative processing options; yet, the de minimis impact provision can provide for a more streamlined process for achieving those outcomes. The one exception is that in some cases the additional time needed to complete the de minimis public comment and review requirements, that may not otherwise be required or other project review processes that would extend the review period on projects for public parks, recreation areas, and wildlife and waterfowl refuges, can negate some or all of the time savings. In addition to time savings, the majority of transportation officials (both Federal and project sponsors) reported that the de minimis impact provision has reduced the costs associated with completing a project. Similarly, the majority reported cost savings of 1 to 25 percent.

The majority of the limited number of responding officials with jurisdiction answered “unknown” to questions regarding the cost and time savings associated with the de minimis impact provision. Federal transportation agencies and project sponsors reported that the application of the de minimis impact provision has been successful. The vast majority of transportation professionals reported that the activities, features, and attributes of the Section 4(f) resources have not changed as a result of transportation projects that are processed with the de minimis impact provisions. Similarly, a majority reported that user experience of the Section 4(f) resource did not change as a result of the project, or answered unknown. Similarly, the majority of transportation officials reported that the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section 4(f) processing options.

The limited number of responding officials with jurisdiction were more varied in their views regarding the effectiveness of impact mitigation and avoidance commitments associated with the de minimis impact provision. However, a slight majority of the officials with jurisdiction perceive that the de minimis impact provision at least maintains the protection of Section 4(f) resources as compared to other Section 4(f) processing options or were neutral. Given the small number of officials with jurisdiction responding to the survey, it is not possible to generalize the feedback collected from these individuals to the larger population.

Feasible and Prudent Avoidance Alternative Standards

Section 6009(b) of SAFETEA-LU directed DOT to issue regulations to clarify application of the legal standards in determining whether alternatives are prudent and feasible. Congress maintained that the fundamental legal standard contained in the Overton Park decision for evaluating the prudence and feasibility of avoidance alternatives remain as the legal authority for these regulations. However, SAFETEA-LU directed DOT to provide more detailed regulations on applying these standards. In March 2008, FHWA and FTA published a Final Rule that defines a “feasible and prudent avoidance alternative” as one that “avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property. In assessing the importance of protecting the Section 4(f) property, it is appropriate to consider the relative value of the resource to the preservation purpose of the statute.” The definition emphasizes that the use of Section 4(f) property is to be balanced against competing factors, with a “thumb on the scale” in favor of preserving the Section 4(f) property.

The DOT designed a survey to collect information regarding the effect(s) of the revised feasible and prudent avoidance alternative definition and associated standards on implementation of Section 4(f). The study team targeted Federal, project sponsor, official with jurisdiction, and citizen/advocacy group respondents in order to capture the views of stakeholders on the impacts of the revised feasible and prudent avoidance alternative standards. Due to the limited number of projects that have completed final Section 4(f) evaluations using the revised standards, the results of the Phase II survey cannot be generalized to the overall population. Instead, findings from the Phase II survey are intended to analyze initial perceptions of the effects of the revised prudent and feasible avoidance alternative standards.

According to the majority of transportation officials and citizen/advocacy group respondents²⁸ (80 percent and 67 percent, respectively), the new standards protect Section 4(f) resources at least to the same degree they were protected before the clarification of feasible and prudent alternatives in the revised regulations. Generally, transportation professionals (both Federal and project sponsors) agreed that the new standards were helpful in articulating what constitutes a feasible and prudent avoidance alternative but that it had not had any substantial effect, positive or negative, on the Section 4(f) resources. Some transportation professionals also indicated that the updated standards have provided a better means of documenting and supporting the decisions being made.

Two of the five officials with jurisdiction respondents had a negative view on the impact of the new feasible and prudent standards on the protection of Section 4(f) resources, one stating “in the end no resource protection was gained.” Given the small number of officials with jurisdiction responding to the survey, it is not possible to extrapolate reliably as to whether this sentiment is shared among other officials with jurisdiction. Similarly, most transportation agency respondents that provided an answer to the question indicated that they did not know how the updated standards had affected the post-construction effectiveness of impact mitigation and avoidance commitments, suggesting that not enough time has passed since the updated standards were issued to complete project construction and/or assess mitigation and avoidance commitments.

The Final Rule defines a “feasible and prudent avoidance alternative” as one that “avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property.” Respondents were asked to rate the degree to which 10 assessment criteria had each individually clarified the determination of whether an avoidance alternative is feasible and prudent. According to survey results, most respondents, regardless of group responding, believed that each assessment criterion had clarified the determination of whether an avoidance alternative is feasible and prudent. Project sponsors held this view most strongly among the responding groups. Very few individual “confused” rankings were received. Among those that indicated that a particular criterion had confused the process, one official with jurisdiction expressed the concern that “[d]ifferent” people have different definitions of terms like ‘unacceptable safety or operational problems’ and ‘unique problems or unusual factors,’ and that highway engineers “tend to define these in terms that best suit their preferred alternatives.” It is unknown whether other officials with jurisdiction share this view.

The Final Rule also includes a “least overall harm” determination that balances seven factors, which are to be used when all alternatives result in the use of Section 4(f) property and there is no feasible and prudent alternative that avoids a Section 4(f) use. Respondents were asked to evaluate each of the seven factors on a scale ranging from 1 (“confused” the determination of the alternative) to 5 (“significantly clarified” the determination). They were then asked to rate the seven factors when considered together. Transportation respondents, both in their rankings and comments, tended to agree that the opportunity to weigh the factors has had a positive effect on determining which alternative has the least overall harm.

The Phase II study findings do not reveal any fundamental issues with implementing the Section 6009 provisions. However, given the relatively small number of completed Section 4(f) evaluations that have been processed using the updated feasible and prudent avoidance alternative standards, and the limited feedback received on potential areas of confusion, it would beneficial to all stakeholders if additional information about the regulation and revised provisions were provided. FHWA has updated the content for all courses that cover the Section 4(f) regulation to address the new provisions, and is currently updating the Section 4(f) Policy Paper.²⁹ This updated Policy Paper, expected to be issued for comment in 2011 and which will address the revised regulation, will provide further information and guidance to foster increased knowledge among practitioners, stakeholders, and the public.

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