LTD W Eugene EmX Ext Project. Amazon Alignment Alternative

New Search

Questions and Answers on the Application of the Section 4(0 De Minimis Impact Criteria... Page 4 of 7 THPO does not respond to a request for concurrence in the Section 106 determination within the specified time, the non - response together with the written agreement, will be considered written concurrence in the Section 106 determination that will be the basis of the de minimis finding by FHWA or FTA. FHWA or FTA must inform the SHPOs and THPOs who are parties to such PAs, in writing, that a non - response that would be treated as a concurrence in a "no adverse effect" or "no historic properties affected" determination will also be treated as the written concurrence for purposes of the FHWA or FTA de minimis impact finding. It is recommended that this understanding of the parties be documented by either appending the written notice to the existing PA, or by amending the PA itself. Question D. For historic properties, will a separate public review process be necessary for the determination of a de minimis impact? Answer: No. Section 6009(a) of SAFETEA -LU requires the U.S. DOT to consult with the parties participating in the Section 106 process but does not require additional public notice or opportunity for review and comment. Documentation of consulting party involvement is recommended. For projects requiring the preparation and distribution of a NEPA document, the information supporting a de minimis impact finding will be included in the NEPA documentation and the public will be afforded an opportunity to review and comment during the formal NEPA process. 3. De Minimis Impact Findings for Parks, Recreation Areas, and Wildlife and Waterfowl Refuges Question A. What constitutes a de minimis impact with respect to a park, recreation area, or wildlife and waterfowl refuge? Answer: An impact to a park, recreation area, or wildlife and waterfowl refuge may be determined to be de minimis if the transportation use of the Section 4(f) resource, including consideration of impact avoidance, minimization, and mitigation or enhancement measures, does not adversely affect the activities, features, and attributes that qualify the resource for protection under Section 4(f). Language included in the SAFETEA -LU Conference Report1141 provides additional insight on the meaning of de minimis impact. "The purpose of the language is to clarify that the portions of the resource important to protect, such as playground equipment at a public park, should be distinguished from areas such as parking facilities. While a minor but adverse effect on the use of playground equipment should not be considered a de minimis impact under section 4(f), encroachment on the parking lot may be deemed de minimis, as long as the public's ability to access and use the site is not reduced." This simple example helps to distinguish the activities, features, and attributes of a Section 4(f) resource that are important to protect from those which can be used without resulting adverse effects. Playground equipment in a public park may be central to the recreational value of the park that Section 4(f) is designed to protect. When impacts are proposed to playground equipment or other essential feature, a de minimis impact finding will, at a minimum, require a commitment to replace the equipment with similar or better equipment at a time and in a location that results in no adverse effect to the recreational activity. A parking lot encroachment or other similar type of land use, on the other hand, could result in a de minimis impact with minimal mitigation, as long as there are no adverse effects on public access and the official(s) with jurisdiction agree. Question B. What are the requirements for a finding of de minimis impact with respect to a park, recreation area, or wildlife and waterfowl refuge? Answer: The impacts of a transportation project on a park, recreation area, or wildlife and waterfowl refuge that qualifies for Section 4(f) protection may be determined to be de minimis if: 1. The transportation use of the Section 4(f) resource, together with any impact avoidance, minimization, and mitigation or enhancement measures incorporated into the project, does not adversely affect the activities, features, and attributes that qualify the resource for protection under Section 4(f); 2. The official(s) with jurisdiction over the property are informed of FHWA's or FTA's intent to make the de minimis impact finding based on their written concurrence that the project will not adversely affect the activities, features, and attributes that qualify the property for protection under Section 4(f); and http:// www. fhwa .dot.gov /hep /gasdeminimus.htm 3/12/2009