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What are the federal reviews? Why are they happening?
The massive changes proposed for Jackson Park by the Obama Foundation in collaboration with former Mayor Rahm Emanuel, the Chicago Department of Transportation (CDOT), and the Chicago Park District would impact a national roadway – Lake Shore Drive – as well as the nationally registered historic park and would involve the use of federal transit funds. Under federal law, such a combination of factors triggers a series of reviews intended to preserve historic places and minimize environmental damage.
In addition, because funds from a National Park Service (NPS) program have supported recreational improvements to Jackson Park, the proposed conversion of a portion of that parkland for a non-recreational use (i.e., the Obama Presidential Center) requires a review by NPS to determine how much replacement parkland must be provided.
Because of the complex nature of the proposals for Jackson Park, multiple reviews are required. The most significant are the “Section 106” review, the “NEPA” review, the “4(f)” review, and the “UPARR” review.
Who is in charge?
When the federal reviews began in December 2017, the Federal Highway Administration (FHWA) was the official lead agency for both the Section 106 and NEPA reviews, and the National Park Service was the lead agency for the UPARR review. In mid-2018 the National Park Service (NPS) was newly designated as the lead agency for the NEPA review, while FHWA remained the lead agency for the Section 106 review.
While these are called “federal reviews,” the actual work of managing the review processes was delegated by FHWA to the Chicago Department of Planning and Development (DPD) and the Chicago Department of Transportation (CDOT). JPW and others have expressed multiple concerns about the inherent conflicts of interest, with CDOT reviewing the CDOT-developed road change proposals and former Mayor Emanuel’s hand-picked officials overseeing the process. Since the election of Mayor Lori Lightfoot, the commissioners who were leading CDOT and DPD have been replaced; this leadership change offers the possibility that the federal reviews may be more even-handed and transparent as they resume in early August 2019.
The City maintains a website about the federal reviews on which reports (final and drafts), meeting schedules, and related documents can be found.
What is a “Section 106” review?
A Section 106 review is required under the National Historic Preservation Act of 1966, passed when construction of the federal highway system threatened or actually destroyed historic places. It requires federal agencies to consider the effects – including any potential adverse effects – of planned changes to historic properties such as Jackson Park and the Midway Plaisance, both listed on the National Register of Historic Places.
The Section 106 review of Jackson Park began December 1, 2017; a second meeting was held March 29, 2018. Originally projected to conclude sometime in 2018, the Section 106 review is now projected to be finished in fall 2019. This is important because the results of this review are utilized in the NEPA review (see below), which should follow after the Section 106 process concludes.
The first step in the Section 106 review is complete. It involved defining the area that would be impacted by the proposed development and developing an inventory of historic properties in the affected areas in consultation with the involved consulting parties. The next step in process, identifying potential adverse impacts on the historic properties identified in the inventory through the Assessment of Effects or “AOE” report, began in late July 2019. It requires reviews of the draft AOE report by the consulting parties as well as a public meeting.
Consulting parties: Interested groups and organizations were able to ask to be a “consulting party” for the Section 106 review. Jackson Park Watch is one of the consulting parties along with numerous local, state, and national groups concerned with parks, natural areas and historic preservation. This designation is supposed to entail the ability to raise questions, submit feedback, and otherwise have a seat at the table. Under Mayor Emanuel’s watch, there were several chronic problems with the process. Prominent among these were limited communications, lack of response to questions and concerns, and incomplete and delayed information. JPW and others are hopeful that these will have been resolved as the reviews resume under a new mayor.
Remaining steps in the Section 106 review involve:
- developing alternatives to avoid, minimize, or mitigate these adverse effects with input from the consulting parties;
- reviewing the alternatives with the consulting parties to attempt to reach agreement;
- finalizing the process with a Memorandum of Agreement.
The City anticipates that these steps will be finished in the fall of 2019.
After a long hiatus, on July 24, 2019 the Chicago Department of Planning and Development announced that the Section 106 meetings would resume on August 5. Unlike prior Section 106 meetings, it will be in two parts: a two-hour meeting for consulting parties, followed by a two-hour meeting for interested members of the public.
The August 5 Section 106 meeting will focus on the Assessment of Effects report that was posted on July 29 on the City’s Federal Review website. The meeting is expected to discuss potential “adverse impacts” of the proposed Obama Presidential Center and related road closures and realignments on the historic property, i.e., Jackson Park. It will be an important gauge of how the process will move forward under the Lightfoot administration. For more detailed information about the AOE see our Update from July 29, 2019.
Further meetings, yet to be scheduled, will then discuss measures to avoid, minimize, or mitigate adverse effects; discuss alternatives with the consulting parties; and complete the process with an MOA (Memorandum of Agreement).
What is a “NEPA” review?
A NEPA review is required under the National Environmental Policy Act of 1969 to assess the environmental impacts of proposed projects that entail the expenditure of federal funds or impact designated types of properties including historic parks. This Act was passed in response to broad concerns about the adverse impacts of construction of the federal highway system on wetlands, parks, and the like. A NEPA review typically addresses a wide range of broadly defined environmental factors including noise, traffic, wildlife/habitat, air & water quality, and socioeconomic impacts. “Meaningful public input” is required, culminating in a formal public hearing.
A NEPA review should include the following steps:
- development of the “Purpose of and Need for Action” statement that describes the proposed project that will be the subject of the NEPA review, including identification of the No-Action Alternative “baseline condition” against which the impacts of the proposed project will be evaluated;
- identification of any adverse impacts of the proposed project on a broad range of potential social and natural environmental factors and the significance of these impacts;
- assessment of alternative ways to accommodate the project that would have fewer adverse impacts on the pre-existing baseline condition;
- preparation of a tentative decision for public comment and input;
- determination of a final decision as to what alternative(s) to pursue and how to pursue it.
A NEPA review is supposed to be informed by the Section 106 review and conducted after it is largely complete. However, the NEPA review for the OPC began in 2017 behind closed doors during the Emanuel administration, not long after the launch of the Section 106 review. At the March 29, 2018 Section 106 meeting, it was mentioned in passing that the City, with no public notice, was beginning to issue documents relating to the NEPA review, and these were available for comment on the City website. These documents – in particular the “Purpose and Need” statement and the “Alternatives To Be Carried Forward” – have proven to be very controversial, and have drawn many challenges from JPW and other consulting parties (see below).
There were no public meetings or public discussion of the NEPA review until the National Park Service replaced the Federal Highway Administration as the lead agency for the NEPA review. The NPS then held an initial public information meeting about the NEPA process in September 2018, but there was no discussion of the controversial NEPA documents. The various NEPA documents produced to date and the NPS presentation on the NEPA process are all posted on the City website.
In late July 2019 the City posted a schedule anticipating that there will be a public meeting to discuss the proposed NEPA Environmental Analysis in winter 2020, and a final federal decision in spring 2020. Many controversial items have to be addressed for this to occur in that timeframe.
Problems with the City’s Approach to the NEPA review to date
During the period that the FHWA was the federal lead agency for all of the federal reviews, the work on key NEPA documents was badly flawed, as described below. It will be critically important to see how NPS, in its new role as lead federal agency for the NEPA review, addresses the key problems that have been noted by numerous consulting parties to date.
- The City’s “Purpose and Need” statement is badly flawed
The City’s draft “Purpose and Need” statement, dated February 2018, alleges that the “purpose and need” for the changes under review was “… to close roadways within Jackson Park, Chicago, Illinois to meet the planning and development objectives for Jackson Park as described in the 2018 South Lakefront Framework Plan,” an assertion that was patently untrue (see below). The “purpose and need” statement is a key document in any NEPA review process. This attempt to deny that the “purpose and need” for the changes under review is the City’s desire to accommodate the Obama Foundation’s plan to construct the Obama Presidential Center in Jackson Park and to make major road changes to accommodate its preferred design throws the integrity of entire process into doubt.
- Improper description of project “No-Action Alternative baseline condition”
Key to the entire NEPA process is the identification of the “No-Action Alternative baseline condition” to be used as the starting point for the review. The proper “baseline condition” is the pre-existing condition of the area where the proposed project is to occur. In this instance, the proper No-Action Alternative baseline condition would be the current configuration of Jackson Park and its roads. However, the City has improperly insisted that the No-Action Alternative baseline condition is the configuration that would exist after the OPC is constructed and after all of the proposed road changes are implemented.
- Attempt to use the South Lakefront Framework Plan as a cover
In an attempt to justify its actions, under former Mayor Emanuel the City asserted that the Park District’s South Lakefront Framework Plan (SLFP) requires construction of the OPC in Jackson Park and requires the related road changes. This assertion flies in the face of the facts, given that the SLFP was an ex post facto exercise that began after the fully-developed plans for the OPC and the road projects were announced. The SLFP was premised on the wholesale inclusion of the fully developed plans that were presented at the June 2017 launch of the SLFP process, and no discussion or consideration of alternatives was allowed during the SLFP process.
- Flawed baseline description leads to flawed statement of alternatives to be evaluated
Using its flawed definition of “purpose and need” and its improper definition of the No-Action Alternative “baseline condition,” the City proceeded to develop a draft “Alternatives to Be Carried Forward” document that – no surprise, given its assumptions – found that the only acceptable alternative to be “carried forward” for evaluation was the CDOT-developed plan to close Cornell Drive and a portion of the Midway Plaisance and to make the other major road changes approved by the Plan Commission on May 17 2018.
This improper “Alternative” conclusion would enable the City to truncate the NEPA review and skip a key requirement – the additional 4f review.
What is a “4(f)” review?
Section 4(f) has been part of federal law governing the U.S. Department of Transportation since 1966. It provides for specific consideration of “4(f) properties” such as significant public parks and recreation lands, wildlife and waterfowl refuges, and historic sites during the development of federally-funded transportation projects. Because Jackson Park is 4(f) property, a 4(f) review is required as part of these federal reviews.
Section 4(f) requires that, before approving a project that uses Section 4(f) property, the FHWA must determine that there is no feasible and prudent alternative that avoids the use of the Section 4(f) properties and that the project includes all possible planning to minimize harm to the 4(f) property. Importantly, Section 4(f) is a substantive rather than a procedural regulation, and precludes approval of a project that includes harm to a 4(f) site when a prudent and feasible avoidance alternative is available. The current project uses Section 4(f) property to construct the OPC and make multiple roadways changes in Jackson Park.
Despite the clear requirement in law for substantive 4(f) review of alternative road changes that would have fewer adverse impacts on the baseline condition in Jackson Park, under cover of its flawed “Alternatives To Be Carried Forward” document, the City is asserting that such a review is unnecessary. Along the way, the City is disregarding the alternative traffic plan commissioned by JPW and submitted to the City. That alternate plan would accommodate the OPC siting in Jackson Park without the need to close Cornell or the Midway Plaisance.
What is a “UPARR” review?
A UPARR review is required under the Urban Parks and Recreation Recovery Act of 1978. Because the City received two UPARR grants for improvements to Jackson Park in the early 1980s, the National Park Service must determine whether and how much Jackson Park land can be converted from recreational to non-recreational uses for the OPC. Replacement parkland must also be identified before conversion is allowed.
Under the Emanuel administration, the City had implied that the National Park Service had signed off on the City’s preferred alternative to use the east end of the Midway between the Metra tracks and Stony Island Avenue as UPARR replacement land. In mid-2018 the City conducted several “community” meetings under that premise. The City’s website continues to assert that the Midway Plaisance will be the UPARR replacement parkland site. However NPS officials have stated that no final decisions have been made. Additionally, while the City has asserted that only existing historic parkland is acceptable as replacement parkland, the NPS has said that creation of new parkland in the area would be an appropriate “replacement” alternative.
As noted above, the role of the National Park Service in the federal reviews of the OPC was expanded in mid-2018 to include not only responsibility for the UPARR review but also responsibility for the NEPA review.
WHAT YOU CAN DO
JPW urges those concerned about the federal reviews to communicate those concerns to local officials and media outlets. See the Take Action page for suggestions about who to contact along with their e-mail addresses.