APPENDIX D – DRAFT SECTION 4(f) EVALUATION This appendix provides draft analysis and information to support determinations required to comply with Section 4(f) of the U.S. Department of Transportation Act (49 United States Code [USC] 303). A Final Section 4(f) Evaluation will be prepared with the Final Environmental Impact Statement that focuses on the Preferred Alternative with the final supporting documentation and analysis to support FTA’s decisions and determinations. Introduction The U.S. Department of Transportation Act of 1966, Section 4(f), generally prohibits U.S. Department of Transportation (USDOT) agencies (including the Federal Transit Administration [FTA]) from approving projects that would use land from: … a significant publicly‐owned park, recreation area or wildlife and waterfowl refuge or any significant historic site, unless there is no feasible and prudent alternative to the use of land from the property and the action includes all possible planning to minimize harm to the property resulting from the use. A use is generally defined as a transportation activity that permanently or temporarily acquires land from a Section 4(f) property, or that substantially impairs the important activities, features or attributes that qualify the property as a Section 4(f) resource. Section 4(f) applies to significant publicly owned parks and recreation areas that are open to the public; publicly owned wildlife and waterfowl refuges; and historic sites of national, state or local significance. The USDOT regulations for Section 4(f) define historic properties as those listed in or eligible for the National Register of Historic Places (NRHP). The Section 4(f) study area for the Southwest Corridor Light Rail Project is based on the analysis for cultural, archaeological and historic resources (see Section 3.6, Historic and Archaeological Resources) and the parks and recreational resources (see Section 3.7, Parks and Recreation Resources). This evaluation also takes into account the areas of effect and analyses from other environmental investigations, including acquisitions, displacements and relocations; transportation; land use; noise and vibration; and visual and aesthetic resources. “Uses” of Section 4(f) Resources Under Section 4(f), a use can be permanent, temporary or constructive. Permanent use would acquire or incorporate all or part of a Section 4(f) property as part of the transportation facility. Temporary use occurs, according to Section 4(f), when the project temporarily occupies any portion of the resource (typically during construction), and it substantially impairs the resource. FTA can allow a Section 4(f) exception under the following conditions: Duration must be temporary, i.e., less than the time needed for construction of the project, and there should be no change in ownership of the land; Scope of the work must be minor, i.e., both the nature and the magnitude of the changes to the Section 4(f) property are minimal; June 2018 Southwest Corridor Light Rail Project Draft EIS D‐1 Appendix D – Draft Section 4(f) Evaluation There are no anticipated permanent adverse physical impacts, nor will there be interference with the protected activities, features, or attributes of the property, on either a temporary or permanent basis; The land being used must be fully restored, i.e., the property must be returned to a condition which is at least as good as that which existed prior to the project; and There must be documented agreement of the official(s) with jurisdiction over the Section 4(f) resource regarding the above conditions (§774.13). Constructive, or indirect, use can occur when the project is near the Section 4(f) resource and has effects that substantially impair the protected activities, features or attributes of a property. For example, a park property that is primarily a scenic viewpoint could have a constructive use if a transportation project blocks views from the park. De Minimis Section 4(f) Impact FTA can approve a transportation de minimis impact of a Section 4(f) property if, after taking into account any measures to minimize harm, it results in either: a Section 106 finding of no adverse effect or no historic properties affected on a historic property, or a determination that the project would not adversely affect the activities, features or attributes qualifying a park, recreation area or refuge for protection under Section 4(f). A de minimis impact finding takes into account any mitigation or enhancement measures that would be implemented, including design measures to avoid or reduce impacts. Before FTA can make this finding, written notice to the official with jurisdiction over the resource, notifying them of the intent to make a de minimis finding, must be made. In addition, there must be an opportunity for public notice and comment. For public parks or recreation properties, a de minimis impact finding requires written concurrence from the agency with jurisdiction over the property, such as a city or county parks department. For historic and archaeological sites, a de minimis impact is allowed if FTA has determined “no adverse effect” in compliance with Section 106 of the National Historic Preservation Act (NHPA) (see Section 3.6 of this Draft Environmental Impact Statement [EIS]). Before making a de minimis finding on a historic or archaeological site, FTA must send a written notice to the State Historic Preservation Office (SHPO). If the SHPO concurs or does not object, FTA may proceed with a de minimis finding. When FTA has made a de minimis determination, the project is not required to analyze avoidance alternatives for that Section 4(f) property. Avoidance Alternatives and Least Harm Analysis When a project’s Section 4(f) impact would be greater than de minimis, FTA must consider whether there are feasible and prudent alternatives that would avoid the impact. As defined in the Section 4(f) regulation, an alternative is feasible if it can be built as a matter of sound engineering judgment. An alternative is prudent if: It meets the project purpose and need and does not compromise the project to a degree that makes it unreasonable to proceed in light of its stated purpose and need; D‐2 Southwest Corridor Light Rail Project Draft EIS June 2018 Appendix D – Section 4(f) Evaluation It does not cause extraordinary operational or safety problems; It causes no other unique problems or severe economic or environmental impacts; It would not cause extraordinary community disruption; It does not have construction costs of an extraordinary magnitude; and There are no other factors that collectively have adverse impacts that present unique problems or reach extraordinary magnitudes. If FTA finds that an alternative is not feasible and prudent, that alternative is removed from consideration as a way to avoid a Section 4(f) use. If there are no prudent and feasible alternatives that can avoid all Section 4(f) resources, then FTA must determine which alternative results in the least overall harm, after considering the following factors: the ability to mitigate adverse impacts to each Section 4(f) property (including mitigation measures that result in benefits to the property) the relative severity of the remaining harm, after mitigation, to the protected activities, attributes or features of the Section 4(f) property 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) substantial differences in costs among the alternatives. The officials with jurisdiction are the SHPO for historic sites or, if the property is located on tribal land, the Tribal Historic Preservation Officer (THPO). The Advisory Council on Historic Preservation (ACHP) can also be involved in consultation; the officials with jurisdiction for public parks, recreation areas, and wildlife and waterfowl refuges are the officials of the agency or agencies that own or administer the property. Section 4(f) Approach The Section 4(f) analysis in this chapter should be considered preliminary, because a Preferred Alternative has not yet been identified for the project. While potential Section 4(f) permanent use, temporary use, and de minimis impacts are identified throughout this chapter, the current analysis is based on conceptual design information and preliminary National Register of Historic Places (NRHP) eligibility determinations that do not include input from the Oregon State Historic Preservation Officer (SHPO). After the Preferred Alternative is selected, a complete Section 4(f) Evaluation will be conducted. This analysis will be documented and presented in the Final EIS. This Draft Section 4(f) Evaluation includes a description of all eligible and potentially eligible historic properties that are impacted by any alternative. Any full or partial parcel acquisition will be documented as a Section 4(f) use, and potential de minimis impacts are also identified. The Determination of Eligibility and Finding of Effects for the Preferred Alternative will be completed with the SHPO as part of the development of the Final EIS and the Section 106 consultation process. June 2018 Southwest Corridor Light Rail Project Draft EIS D‐3 Appendix D – Draft Section 4(f) Evaluation Historic resources that would be fully acquired by any alternative will be considered a