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Questions and Answers on the Application of the Section 4(0 De Minimis Impact Criteria... Page 3 of 7 Answer: Yes. As long as the de minimis impact criteria are met, the impacts associated with a temporary occupancy of a Section 4(f) resource could be determined to be de minimis. It should be noted, however, that Section 4(f) does not apply to the temporary occupancy of Section 4(f) property when the conditions set forth in the FHWA and FTA Environmental Impact and Related Procedures[11 j are satisfied. Therefore, application of the de minimis impact provision for these situations should only be considered when the project does not meet the temporary occupancy exception criteria. Question I. Who makes the de minimis impact findings? Answer: The FHWA Division Administrator or FTA Regional Administrator makes the de minimis impact findings. In the determination, FHWA or FTA shall consider any impact avoidance, minimization, and mitigation or enhancement measures that are included in the project to address the impacts and adverse effects on the Section 4(f) resource. The FHWA Division Administrator or FTA Regional Administrator must consider the facts supporting the determination of a de minimis impact, the record that was compiled in the coordination that must precede the determination of de minimis impact, the concurrence of the official(s) with jurisdiction, and use his or her own best judgment in making the de minimis impact finding. It is ultimately the responsibility of the FHWA or FTA to ensure that de minimis impact findings and required concurrences are reasonable. Coordination with the FHWA or FTA Headquarters or the FHWA or FTA Office of the Chief Counsel is not required for routine de minimis impact findings but is recommended for controversial projects and complex situations. 2. De Minimis Impact Findings for Section 4(f) Uses of Historic Properties. Question A. What are the requirements for a finding of de minimis impact on a historic site? Answer: A finding of de minimis impact on a historic site may be made when: 1. The process required by Section 106 of the National Historic Preservation Act[12j results in the determination of "no adverse effect" or "no historic properties affected" with the concurrence of the SHPO and /or THPO, and ACHP if participating in the Section 106 consultation; 2. The SHPO and /or THPO, and ACHP if participating in the Section 106 consultation, is informed of FHWA's or FTA's intent to make a de minimis impact finding based on their written concurrence in the Section 106 determination; and 3. FHWA or FTA has considered the views of any consulting parties participating in the Section 106 consultation. Question B. How should the concurrence of the SHPO and /or THPO, and ACHP if participating in the Section 106 determination, be documented when the concurrence will be the basis for a de minimis finding? Answer: Section 4(f)[131 requires that the SHPO and /or THPO, and ACHP if participating, must concur in writing in the Section 106 determination of "no adverse effect" or "no historic properties affected." The request for concurrence in the Section 106 determination should include a statement informing the SHPO or THPO, and ACHP if participating, that the FHWA or FTA intends to make a de minimis finding based upon their concurrence in the Section 106 determination. Under the Section 106 regulation, concurrence by a SHPO and /or THPO may be assumed if they do not respond within a specified timeframe, but Section 4(f) explicitly requires their written concurrence. It is recommended that transportation officials share this guidance with the SHPOs and THPOs in their States so that these officials fully understand the implication of their concurrence in the Section 106 determinations and the reason for requesting written concurrence. Question C. Certain Section 106 programmatic agreements (PAs) allow the lead agency to assume the concurrence of the SHPO and/or THPO in the determination of "no adverse affect" or "no historic properties affected" if response to a request for concurrence is not received within a period of time specified in the PA. Does such concurrence through non - response, in accordance with a written and signed Section 106 PA, constitute the "written concurrence" needed to make a de minimis finding? Answer: In accordance with the provisions of a written and signed programmatic agreement, if the SHPO and /or http:// www. fhwa .dot.gov /hep /gasdeminimus.htm 3/12/2009