The Ohio Department of Transportation (ODOT) is cutting down its paperwork and ramping up its collaboration thanks to a unique Programmatic Agreement (PA) signed last year for compliance with Section 6(f) of the Land and Water Conservation Fund Act (LWCF). So, too, are its partners, the Federal Highway Administration (FHWA), the Ohio Department of Natural Resources (ODNR) and the National Park Service (NPS).
The PA lays out a carefully coordinated interagency process for fulfilling requirements when ODOT projects involve land protected under the LWCF. Under Section 6(f) of the law, any property that has received LWCF funding cannot be converted to non-recreational use without replacement of that land, which must be approved by NPS. Converted land must be replaced with land of equal or greater value, location, and usefulness.
“We were having a lot of trouble getting projects through the 6(f) process,” explains Erica Schneider, Assistant Environmental Administrator at ODOT. “It hadn’t been much of an issue in the past because we didn’t have many projects with 6(f) impacts. But in recent years, the number definitely started to go up. The process was taking months, even years, to finish. We knew we had to do something.”
The jointly-developed document contains a number of provisions that reduce required paperwork and eliminate unnecessary agency involvement for any project that triggers Section 6(f) compliance while still ensuring that the resource is protected. Projects involving Section 6(f) properties continue to be broken out into three levels: maintenance, temporary non-conforming use, and conversions. But under the PA, the compliance process for each level has been streamlined. For maintenance-type projects, ODOT doesn’t have to coordinate with ODNR or NPS, which saves the agency at least 30 days of review time. Moreover, impacts that constitute a temporary non-conforming use of a Section 6(f) property can be approved by ODNR, and NPS only has to be copied on the decision, again saving at least 30 days of review time.
“As for conversions, they still take considerable time in that they still have to go through ODNR and NPS,” says Schneider. “But, overall, we’re in a much better position.”
For instance, each agency now has a 30-day deadline for review, and it now is acceptable to use ODOT’s (FHWA’s) real estate appraisal process for replacement land rather than that of NPS. In addition, reviews can be conducted concurrently by ODNR and NPS if the project schedule is expedited. And purchase of the replacement property can occur after National Environmental Policy Act (NEPA) approval (it must be completed prior to final acceptance of the construction project by the engineer).
Furthermore, NPS now accepts FHWA’s documentation for Section 4(f) of the Department of Transportation Act in order to satisfy their NEPA obligations for Section 6(f), which opens the door to one of the biggest time-savers: a standardized single form the partners developed for Section 6(f) as well as Section 4(f). Having a single form means that information doesn’t have to be duplicated, and the new format makes it easier for district staff and consultants to follow and for agency staff to fill out. Also, since Section 4(f) analysis must be approved prior to Section 6(f) approval, ODOT can have all of the information readily available, conduct the Section 4(f) determination and simultaneously be working on the Section 6(f) evaluation.
“Saving time is saving money,” says Schneider. “Streamlining saves us time in the environmental process and also translates through into cost savings during construction due to factors such as inflation and project delays.”
Genesis of the PA
Schneider says that when she and her co-workers at ODOT realized something had to be done about the Section 6(f) process, they first went to their FHWA Division Office. Together, they decided that the next step was to approach NPS and ODNR, the state agency that administers Land and Water Conservation Funds in Ohio. The goal was to suggest jointly developing a process that everyone would benefit from, a process during which participants would collectively identify and integrate streamlining measures.
FHWA, as the counterpart federal agency, initially took the lead in broaching the subject with NPS. Shortly thereafter, ODOT came together with FHWA, NPS, and ODNR for initial discussions. The concept received a universal green light, after which it took about a year to get through the entire process. Initially the discussion focused on what was required by law. Then the focus shifted to how the process could be streamlined. A draft agreement was created, increasingly refined, then finalized and signed in April of 2014. Schneider describes the process as “an excellent team-building exercise,” one that improved participating agencies’ relationships with each other.
Since signing the 6(f) agreement, ODOT has used — or is in the process of using — the PA for five maintenance-type projects and six projects that constitute a non-conforming use. Currently, six conversion type projects are in progress. Five of them are small conversions and the sixth is a full conversion. For the latter, replacement property still is being sought.
Schneider says that ODOT has applied to take on FHWA’s environmental review authority under NEPA, but that ODOT’s new role will not affect the PA. ODOT likely will include a cover letter explaining that under NEPA assignment, ODOT will be responsible for all of FHWA’s actions and responsibilities under the Section 6(f) agreement.
Possibility for Other State DOTs
“To my knowledge, we are the first and only state with a Section 6(f) PA in place,” says Schneider. From her perspective, the concept is one that could be adopted by other state DOTs provided they have a good working relationship with their state agency responsible for administering the LWCF, and that both agencies work well with their federal counterparts, FHWA and NPS.
“NPS was great to work with throughout the process,” she continues. “They were willing to look for streamlining measures wherever the law allowed it. Unfortunately, the law is quite strict in a number of areas so our opportunities were somewhat limited.”
On September 31, 2015, the LWCF expired and Congress has yet to reauthorize it. If the law is not reauthorized, no new Section 6(f) properties can be added. But lack of reauthorization would not eliminate Section 6(f) requirements.
“Lack of reauthorization only means that for the time being, there will not be any new Section 6(f) properties,” Schneider explains. “Despite no new additions, the LWCF protections will remain in effect on all existing properties into perpetuity. So while we may not have new properties in that category to worry about, we will always have the existing group. ODNR estimates that approximately 1,430 properties across the state fall into this category. ”
Additional flexibility like the de minimis impact option developed for Section 4(f) compliance, would be helpful, according to Schneider. Such changes could offer improvements to the process as well as opportunities for enhancement of the resources involved.
“The good news,” she concludes, “is that for all those existing properties, we have our PA in place.”