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Questions and Answers on the Application of the Section 4(0 De Minimis Impact Criteria... Page 2 of 7 <br /> finding; 5) the degree and type of controversy and /or public scrutiny related to the project; and 6) the resulting <br /> benefits realized to a Section 4(f) resource by the de minimis impact finding. <br /> While the de minimis impact criteria may be applied to any project meeting the specified requirements, Section <br /> 6009(a) of SAFETEA -LU does not require the U.S. DOT to re -open decisions already made concerning Section <br /> 4(f) impacts of individual projects. Project sponsors are encouraged to examine projects currently in the <br /> environmental process to see if any would benefit from application of the de minimis impact criteria, but the <br /> decision must be made on a case -by -case basis. <br /> Question D. Can a de minimis impact finding be made for a project as a whole, where multiple Section 4(f) <br /> resources are involved? <br /> Answer: No. Where multiple Section 4(f) resources are present in the study area and potentially used by a <br /> transportation project, de minimis impact findings must be made for the individual Section 4(f) resources. The <br /> impacts to Section 4(f) resources and any impact avoidance, minimization, and mitigation or enhancement <br /> measures must be considered on an individual resource basis and de minimis impact findings made individually <br /> for each Section 4(f) resource. However, when there are multiple resources for which de minimis impact findings <br /> are appropriate, the procedural requirements of Section 4(f) can and should be completed in a single process, <br /> document and circulation, so long as it is clear that distinct determinations are being made. Also in these cases, <br /> the written concurrence of the official(s) with jurisdiction may be provided for the project as a whole, so as long <br /> as the de minimis impacts findings have been made on an individual resource basis. <br /> Question E. What role does mitigation play in the de minimis impact finding? <br /> Answer: The de minimis impact finding is based on the degree or level of impact including any avoidance, <br /> minimization, and mitigation or enhancement measures that are included in the project to address the Section 4 <br /> (f) use. The expected positive effects of any measures included in a project to mitigate the adverse effects of a <br /> Section 4(f) resource must be taken into account when determining whether the impact to the Section 4(f) <br /> resource is de minimis. The purpose of taking such measures into account is to encourage the incorporation of <br /> Section 4(f) protective measures as part of the project] . De minimis impact findings must be expressly <br /> conditioned upon the implementation of any measures that were relied upon to reduce the impact to a de <br /> minimis level. The implementation of such measures will become the responsibility of the project sponsor, with <br /> FHWA or FTA oversight[8]. <br /> Question F. How should the de minimis impacts to Section 4(f) resources be considered in the alternative <br /> selection process when all feasible and prudent alternatives result in Section 4(0 use? <br /> Answer:For those situations in which multiple Section 4(f) resources will be used by a project and it has been <br /> determined that no feasible and prudent avoidance alternatives exist, the de minimis impacts of Section 4(f) <br /> resources must be factored into the analysis to determine which alternative results in the least overall harm as <br /> described in the FHWA Section 4(f) Policy Paper[9]. <br /> In most cases, the de minimis impacts will have little or no influence on the determination of overall harm <br /> because the activities, features and attributes of the Section 4(f) resources will not be adversely affected. Also, <br /> because potential adverse impacts to the Section 4(f) resources will be completely mitigated or enhanced by <br /> inclusion of such measures as part of the project in making de minimis impact findings, the Section 4(f) benefit <br /> should be included in the least harm analysis. Where it is not clear which alternative results in the least overall <br /> harm, consultation with the FHWA or FTA Headquarters or the FHWA or FTA Office of the Chief Counsel is <br /> recommended. <br /> Question G. Can a de minimis impact finding be made for a "constructive use" of Section 4(0 property? <br /> Answer: No. A de minimis impact finding can only be made where the transportation use would not adversely <br /> affect the activities, features, and attributes that qualify a property for protection under Section 4(f). Constructive <br /> use, by definition, involves impacts to a Section 4(f) resource such that the protected activities, features, and <br /> attributes would be substantially impaired[10] . Therefore, a de minimis impact finding would not be appropriate <br /> where there is a constructive use. Furthermore, if a potential constructive use can be reduced below a <br /> substantial impairment, with the inclusion of mitigation measures, then Section 4(f) would not apply. <br /> Question H. Can a de minimis impact finding be made for a "temporary occupancy" of Section 4(f) property? <br /> http:// www. fhwa .dot.gov /hep /gasdeminimus.htm 3/12/2009 <br />