Understanding the Federal Reviews

The page is up-to-date as of November 11, 2020. 
For more current information, see recent Updates.

The Need for an Environmental Impact Statement

The National Park Service conducted a month-long public review and comment period, ending on October 30, for its Environmental Assessment of the proposed changes to accommodate the construction of the Obama Presidential Center in Jackson Park. This was the first opportunity for public input into the NEPA (National Environmental Protection Act ) review process, which is designed to prevent or minimize potential negative effects of federal actions on the natural and human environment. JPW and others found the report flawed and incomplete in multiple ways and have called for the more complete review that is standard for projects of this scale and import – the Environmental Impact Statement – as necessary to identify alternatives with better environmental outcomes. Here are some of the comments submitted.

Jackson Park Watch
Friends of the Parks
Preservation Chicago
Protect Our Parks

Wave of opposition to the Memorandum of Agreement drafted to conclude the Section 106 Review

The Federal Highway Administration invited the official consulting parties to the Section 106 review to submit comments on the draft MOA that the FHWA had proposed to end that review process. Having received those comments by August 10, the FHWA is preparing a “revised draft MOA” for presentation at an undetermined date. But the FHWA has indicated that it will make available for public review only a “disposition of comments received” rather than the complete texts of all of the comments. To help correct this unfortunate limitation, JPW here provides its own statement and those of other consulting parties that have shared their comments with us.

Jackson Park Watch
Friends of the Parks
Hyde Park Historical Society
Landmarks Illinois
National Association of Olmsted Parks
Nicholas Park Advisory Council
Preservation Chicago
The Cultural Landscape Foundation

Key JPW statements regarding the Section 106 Review

(Note: Early on, the Chicago Departments of Planning and Development (DPD) and Transportation (CDOT) played the lead role; subsequently the Federal Highway Administration (FHWA), officially responsible for the process, came to the forefront. Statements were submitted to the most relevant agency including, at times, ACHP and NPS.)

2018-01- 04 To DPD and CDOT – concerns re misrepresentation of the import of the South Lakefront Framework Plan (SLFP)
2018-01-08 To FHWA – concerns re conflict of interest resulting from DPD and CDOT as key facilitators of the 106 review process
2018-04-18 To DPD and CDOT – concerns re misrepresentation of SLFP, biases and constraints in the Historic Properties Inventory
2018-08-27 To National Park Service – concerns re replacement parkland
2019-08-26 To DPD – comments and methodological concerns re initial draft Assessment Of Effects (AOE)
2020-02-02 To Advisory Council on Historic Preservation – concern re improper 106 process
2020-02-18 To FHWA – concerns re major methodological and factual problems in the final AOE
2020-03-30 To ACHP – concerns re improper exclusion of areas adjacent to Jackson Park from adverse effect analysis
2020-04-21 To FHWA – concerns re improper exclusive focus on “mitigation” and use of webinars that preclude substantive consultation in developing the Memorandum Of Agreement (MOA)
2020-05-25 To FHWA – further concerns about process used to develop MOA
2020-08-07 To FHWA – statement refusing to sign MOA, summarizing key flaws in Section 106 process

“Final” AOE attracts further criticisms

The Assessment of Effects (AOE) report is a key part of the federal Section 106 review of the impact that the plans for the Obama Presidential Center along with its required road changes would have on historic Jackson Park. 

The initial draft AOE released July 29 seemed a bit schizophrenic: in places it documented significant adverse effects on Jackson Park while also arguing in other portions of the report that the impacts were negligible.  (See AOE controversy Part I below)

The second version of the AOE (labeled “Final”), released January 16, was even more inconsistent and more jarring, coupling clear documentation of adverse effects with a forceful assertion of a flawed analytical framework that would render not only the Section 106 process but also the required NEPA and 4(f) reviews virtually meaningless.  

Specifically, the AOE asserts that any impacts of closing Cornell Drive between 59th and 63rd Streets and of removing the segment of the Midway Plaisance between Stony Island and Cornell Drive as well as any impacts of the construction of the OPC are exempt from the requirement to consider ways to avoid or minimize those impacts; further, it asserts that the proper baseline for the limited review it does propose is the post-construction condition of the park and neighborhoods, not the condition today.

(See JPW Updates of January 26 and February 6 for details on the content of the “Final” AOE. See the City’s related website for additional documents released along with the second AOE. )  

Once again, JPW and other consulting parties responded with careful, thoughtful commentary and critiques (posted below).  Themes running throughout the critiques include:

  • Analyses showing that the AOE analytical framework is contrary to the National Historic Preservation Act, flies in the fact of the inextricable ties between so-called “City” actions and “Federal” actions, and, akin to efforts of the current administration to gravely weaken environmental protections, would set a threatening precedent for further historical protection efforts;
  • Consistent questioning and criticisms of the City’s assertions that UPARR replacement parkland should be located on the east end of the Midway Plaisance, already itself parkland listed on the National Register of Historic Places;
  • Criticisms of the plan to destroy the Women’s Garden, use the area as a construction staging ground, and then build a scaled down altered green space without the perennial border and trees;
  • Pointed questions as to why the proposal to merge and expand the existing golf course is not included in the present Section 106 review when the proposals to close Marquette Drive and construct several underpasses, infrastructure work directly related to the golf project, are themselves included.

Selected consulting party comments are here: 
Jackson Park Watch
Friends of the Park
Hyde Park Historical Society
Landmarks Illinois 
Preservation Chicago
Save the Midway
The Cultural Landscape Foundation

What comes next?

The National Historic Preservation Act requires that the lead Federal agency, the FHWA, “consults with consulting parties to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on the historic properties”

(36 CFR § 800.6 (a)). While the FHWA has shown no inclination to do so to date, it is legally obligated to do so.  We will see what happens.

In the meantime, construction of the OPC and work on the road changes remain on hold.

AOE controversy, Part I

The precursor to the “Final” AOE was the draft Assessment of Effects (AOE) report released July 29, which clearly documented that the current plans to locate the Obama Presidential Center in Jackson Park would have significant adverse effects on the historic park.  As noted above, other parts of the report argued that adverse effects were insignificant and that mitigating actions had already been taken. City and Federal Highway officials speaking at the August 5 meetings concerning the AOE strongly suggested that the AOE report would not lead to any significant changes in the basic OPC plan, a stance that led to a widely publicized letter by JPW and other organizations decrying the absence of transparency and accountability. Reports on the letter appeared in Crain’s, and Sun-Times

On August 22 in an somewhat unusual move, the Advisory Council on Historic Preservation (ACHP) released a letter identifying numerous shortcomings in the draft AOE and in Section 106 process to date and indicating that additional data was needed – for example, an analysis of traffic diversions onto neighborhood roads, and an analysis of the visual impact of the 235’ Obama Museum Tower.  The ACHP, an independent federal agency established as part of the National Historic Preservation Act of 1966, promotes the preservation and enhancement of our country’s historic resources.  It is an official consulting party in this Section 106 process.  It is the only entity with the legal responsibility to encourage Federal agencies to factor historic preservation objectives into Federal project requirements, and it advises the President and Congress on national historic preservation policy. 

Perhaps because of the visibility of the draft AOE report and the controversy over how the August 5 meeting was handled, there was an outpouring of comments on the draft AOE continuing up to the August 30 deadline.  We link to our own AOE comments here and those of several other organizations:

Jackson Park Watch
Friends of the Parks
Hyde Park Historical Society
Landmarks Illinois
Preservation Chicago
Save the Midway
The Cultural Landscape Foundation

 * * * * * * * * * * * *

 The backstory:

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.  

  1. 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.

  1. 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.

  1. 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.

  1. 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. 


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.