DIRECTOR'S ORDER #87D: NON-NPS ROADS
Effective Date: December 14, 2000
Sunset Date: December 14, 2004
Table of Contents
A. Purpose and Background
B. Summary of Major Actions and Time Frames
D. Operational Policies
E. Delegation of Authority
F. Early Coordination
G. Sequence of Events
H. Conditions in a Highway Easement Deed
A. PURPOSE AND BACKGROUND
This Director’s Order replaces and supercedes all previous guidance and memoranda, including the Director’s memorandum of November 30, 1998, regarding state and local non-NPS Federal-aid roads and highways.
1. Purpose of Director’s Order. The purpose of this Director’s Order is to set forth NPS operational policies and procedures for responding to requests we receive for use of national park lands for non-NPS highway projects that are partially or fully funded under Title 23 of the United States Code. The kinds of projects covered are those built by a state or other Department of Transportation (DOT), and include Interstate highways, bridges, railroad highway crossings, drainage structures, signs, guard rails and protective structures, and other road-related improvements.
2. The National Highway System. Congress has established a National Highway System to serve the nation’s national defense, commerce and industry, and interstate and interregional travel needs. This system is sometimes referred to as the Federal-aid system, which receives funding under 23 U.S.C. 101 and 23 U.S.C. 103.
3. Policy to Preserve Public Park Lands. Congress has emphasized the importance of constructing and reconstructing the Federal-aid highway system to bring all the system’s roads up to standards and to increase the safety of the system, and has authorized the Secretary of Transportation to appropriate Federal lands for highway purposes. Congress has also established, in section 4(f) of the Department of Transportation Act of 1969 (23 USCU.S.C. 138), a national policy that "special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites."
In support of this policy, section 4(f) prohibits the Secretary of Transportation from approving "any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance..., or any land from an historic site of national, State, or local significance...unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use." Section 4(f) applies to all NPS lands requested for rights-of-way for highway purposes that would use funds obtained under Title 23. The Federal Highway Administration (FHWA) administers provisions of Section 4(f) on projects or programs related to roadways under this provision of law for the Secretary of Transportation.
4. Effects on National Parks. When DOTs at the Federal, state, and local levels study the need for new roads or the improvement of existing roads, they occasionally identify as an alternative a route that would use national park lands. When this happens, it becomes necessary for the Department of the Interior (DOI), usually through the National Park Service (NPS), to concur with the DOT’s findings pursuant to Section 4(f) of the Department of Transportation Act that (a) there is no feasible and prudent alternative; and (b) all possible planning has taken place to minimize harm to the park. In most cases, DOI relies on the NPS to draft its response to DOT's Section 4(f) findings. However, it should be understood that DOI retains actual concurrence authority.
5. Related references. Reference Manual 87D will provide a description of roads not covered under this Director’s Order, as well as expanded explanations, procedures, and exhibits. Additional guidance on transportation-related issues will be provided in Director's Order #87A: Park Roads and Parkways, #87B: Alternative Transportation Systems, and #87C: Transportation System Funding. Also see section 9.2.1 of NPS Management Policies.
B. SUMMARY OF MAJOR ACTIONS AND TIME FRAMES
All NEPA and 4(f) compliance activities and, if applicable, a transportation conformity analysis, are done at the beginning of the process, as soon as the DOT identifies the need for Federal land. Only after all compliance activities have been done -- and approvals received -- should the DOT write to FHWA, who then formally notifies NPS about the request for land. The formal notification includes all compliance and sign-off documents. The NPS cannot evaluate the requests until the environmental analysis is complete.
Once the formal request has been received, 23 USCU.S.C. 317 allows the NPS 4 months from the date of notification to reply to the FHWA request for land. The NPS may deny the request upon finding, in writing, that it is "contrary to the public interest or inconsistent with the purposes for which such land or materials have been reserved." Otherwise, the NPS may agree to the transfer under conditions deemed necessary for adequate protection and utilization of the land.
The law provides that, if the NPS fails to respond within the 4-month period, the FHWA may acquire the easement without further action by the NPS. Note, however, that this notification and subsequent 4-month limitation is well into the sequence, and after all NEPA and 4(f) (and, if applicable, National Historic Preservation Act (NHPA) Section 106 compliance,, and transportation air conformity requirements per Section 176(c) of the Clean Air Act, as amended if applicable) are completed and signed-off. By the time the NPS receives such notification, there should be a need merely for a "letter" that ensures the conditions needed by the NPS to protect the resources are in the draft deed. A denial based on NEPA, 4(f), or Section 106, or air conformity concerns -- and the FHWA sign-off on that denial -- should have happened well before an "official request" was sent. (See a more detailed account of this process in Section F below, and in RM-87D.)
Authority to issue this Director’s Order is found in 16 USCU.S.C. 1-4 (National Park Service Organic Act), and delegations of authority found in Part 245 of the Department of the Interior Manual.
Other key statutory provisions are:
Individual parks within the national park system may also have park-specific legislation that governs the decision-making process for highway rights-of-way within the park. In addition, this policy does not supercede more general legislative direction or implementing regulations that may pertain, for example, to the Alaska National Interest Lands Conservation Act (ANILCA).
D. OPERATIONAL POLICIES
1. The NPS will participate early in all transportation planning studies and planning processes with state and local governments, Federal agencies, and regional planning bodies and citizen groups. Superintendents must take an active role in overall community and transportation planning activities to educate all parties about the NPS mandate to protect park resources. NPS involvement, including that of superintendents in such planning activities, shall not constitute concurrent planning within the context of Section 4(f).
2. All lands within the national park system are considered nationally significant for 4(f) purposes. The NPS DOI will not grant any request to route a state or local road through park land, or to increase the size of a right-of-way for an existing road, unless the NPS first agrees with the FHWA’s determination that (a) there is no feasible and prudent alternative, and (b) all possible planning has taken place to minimize and mitigateharm to the park. No NPS representative is authorized to designate all or any portion of the lands comprising a unit of the national park system necessary for a proposed highway project as anything except nationally significant.
3. Even if the NPS/DOI concurs with the FHWA’s affirmative findings on 2 (a) and (b) above, it will not grant a request if it determines that the proposal is (c) contrary to the public interest, or (d) inconsistent with the purposes for which such land or materials have been reserved. In making an affirmative finding under (c) and (d), the NPS/DOI will take into account (among other things), the prohibitions against impairment of park resources and values, and whether the proposal would:
4. Any request for NPS land for highway purposes will require all environmental and cultural compliance to be completed and agreed to prior to the NPS receiving a formal request for land from FHWA for highway purposes. Should the FHWA (or DOT) request a transfer of NPS land prior to conducting an environmental analysis, the NPS response should be that it will not make a decision until the agreed upon environmental analysis is complete.
5. Should the conditions of paragraphs 2 and 3 above be met, and a decision made to grant the transfer of park land, the Highway Easement Deed (HED) will be the document used for this purpose. The HED is required by the NPS for all new roads and for widening existing roads where appropriate, and is the final step when there is agreement to allow use of NPS land for highway purposes. Any instruments other than the HED that have been used in the past to authorize roads in national park areas will be converted to HEDs at the earliest opportunity.
6. The decision by the NPS to grant or deny the requested transfer of land will be communicated to the FHWA by a Letter of Consent or Denial only after all relevant environmental evaluation and analysis has been completed, to support not only the actions of the FHWA, but also the actions of the NPS.
7. Other important policy considerations applicable to transportation systems are contained in sections 9.2 and 9.2.1 of NPS Management Policies.
E. DELEGATION OF AUTHORITY
Regional directors are delegated limited authority, which cannot be re-delegated, to approve:
Regional directors will apply the criteria listed in D.3 above, comply with the applicable policies in NPS Management Policies, and consider the recommendations of the superintendent of the affected park, before taking action.
F. EARLY COORDINATION
The FHWA is the Federal agency charged by law to coordinate these actions and will be instrumental in (1) preparing (along with others) the environmental and Section 4(f) analysis under NEPA and related environmental laws; and (2) ensuring that mitigation and conditions that are agreed to by the NPS and the DOT are incorporated into project plans, specifications, and construction, if a project is approved. (For a more detailed explanation, see RM-87D.)
The request to use NPS land for Federal-aid highway projects typically involves three agencies: (1) the state or local DOT requesting use of park lands; (2) the NPS; and (3) the FHWA. (Other agencies may also be involved. For example, if the land has historic significance or includes historic resources, the Advisory Council on Historic Preservation and the appropriate State Historic Preservation Officer also should be included.) It is advantageous that all three agencies establish an early cooperative working relationship so that project proposals can be coordinated to consider a 4(f) determination, and ensure mutual understanding of the provisions governing the requirements for use of park lands.
G. SEQUENCE OF EVENTS
The following are the major steps involved in requests to transfer lands for highway purposes. These steps assume that the NPS has entered into the initial planning and environmental analysis process at the earliest possible stage of the project. NPS involvement should start when the State DOT/FHWA begins looking at the possibility of any activity that may impact NPS lands.
1. Initial Notification. This step is usually very informal at one or more first-round meetings.
2. Preliminary Evaluation Prior to Official Request. This is the stage where most, if not all, of the compliance and 4(f) evaluations are done, and the process switches from informal to more formal.
3. Official Request by FHWA for NPS Land. At this stage most, if not all, compliance documents have been completed and approved. For the first time, the FHWA sends an "official" letter to the NPS requesting the land for highway purposes. Most, if not all, of the preliminary decisions have been made at this point, and the primary purpose should be to allow the NPS the opportunity to make a final check on the documentation, and edit the conditions in the draft Highway Easement Deed.
4. The Highway Easement Deed. The recommended method of dealing with an HED is for the DOT and NPS to discuss what will be needed in step 2 above, then send a first draft to the NPS in step 3 above. That way, all three parties are familiar with its contents and final wording settled on more quickly.
H. CONDITIONS IN A HIGHWAY EASEMENT DEED
A Letter of Consent signed by a regional director normally should require that at least two specific conditions be included in every HED: (1) a prohibition on "piggy-back" permits; and (2) a reversionary clause. Suggested language for, and explanations of, these and several other useful conditions may be found in RM-87D. There are also occasions when either the DOT road design, engineering, or construction style would cause practical, environmental, and/or esthetic value concerns with the NPS. While this situation might not arise very often, these instances should be handled on a case by case basis, with the NPS consulting with the FHWA to assure compliance where applicable.
Note that -- whether the Letter of Consent includes these clauses or not -- if the NPS consents to the request for land, the grant is for a non-exclusive easement to the DOT for HIGHWAY PURPOSES ONLY. The DOT cannot:
Any new highway or road improvement requiring additional land will require an HED as described here. Any conversion of an existing instrument, such as a Special Use Permit, even though it does not involve use of undisturbed land not covered by the original permit, must also follow this procedure and meet the criteria in section D.3. Conversion from another instrument might, however, qualify for a NEPA and/or NHPA categorical exclusion.
Additional information on roads and highways in parks, including a discussion of categories of roads and those roads already in place prior to the park being created, is found in RM-87D.
This Director's Order applies to the limited circumstances described herein. Other transportation-related grants of rights-of-way or other uses must be approved using other applicable legal and administrative processes. Questions concerning the information contained in this document, or about other rights-of-way, should be directed to your regional environmental coordinator , regional special use coordinator and/or lands office for guidance.
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