Tracking the Federal Reviews

What are the federal reviews? Why are they happening?

The massive changes proposed for Jackson Park by the Obama Foundation, Chicago 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 historic park.  This would potentially involve actions by the Federal Highway Administration (FHWA), the US Army Corps of Engineers, and the National Park Service (NPS).

Because of the complex nature of the proposals to construct the Obama Presidential Center (OPC) and to make major changes to the roadways in 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?

Initially, the Federal Highway Administration (FHWA) was the official, legally responsible lead agency for all of these reviews, and the actual work of managing the review processes had been delegated by FHWA to the Chicago Department of Planning and Development (DPD) and CDOT.   Recently the National Park Service (NPS) has been designated as the lead agency for the NEPA review, while FHWA remains the lead agency for the Section 106 review.

JPW continues to have concerns because delegation to the City and CDOT meant that CDOT was in charge of reviewing the road changes proposal that it developed itself.  JPW wrote the Federal Highway Administration expressing those concerns early on for the record.  Other causes for concerns are the fact that, despite the significance of these proposed changes to Jackson Park and their likely impact on this irreplaceable public park, the City’s DPD and CDOT have never provided full information about the reviews, which have been proceeding largely behind closed doors.

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 of their plans on historic properties such as Jackson Park and the Midway Plaisance, both listed on the National Register of Historic Places. It began December 1, 2017 and is now projected to last until sometime in 2019.

The first step in this review is complete.  It involved developing an inventory of historic properties in the affected areas in consultation with the involved consulting parties (see note on consulting parties below).  (Note:  Appendix F does a good job of documenting the historic integrity of Jackson Park today.)

Subsequent steps in the Section 106 review involve:  

  • identifying potential “adverse impacts” on the historic properties identified in the inventory;
  • developing alternatives to avoid, minimize, or mitigate these adverse effects;
  • reviewing the alternatives with the consulting parties to attempt to reach agreement;
  • finalizing the process with a Memorandum of Agreement.

How has the Section 106 review progressed to date?

There have been two Section 106 meetings to date, the “kick-off” meeting on December 1, 2017 and a subsequent meeting on March 29, 2018  to present the historic properties and archeology reports. Recordings of these first two meetings and related materials are available on the City’s website for the federal reviews.

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.

Problem #1: Circumscribed role of consulting parties

To date, the Section 106 process is being conducted in a way that has seemingly attempted to sideline consulting party voices through limited communications, lack of response to questions and concerns, incomplete and delayed information, and the like.

In July, the City posted an FAQ that appeared to respond to at least some questions that consulting parties had raised.  However, the FAQ is a mixed bag of fact and fiction: in one particularly notable example, although the OPC plans include clear-cutting of the site prior to construction, the City’s FAQ maintains that the OPC “…will take every effort possible to reduce impacts to trees.”  Another example of note is the assertion that the Stony Island drop-off and pick-up area for the OPC would operate without impacts to Stony Island operations even though public information on the design of this area has not been made available to allow public comment.

The Section 106 meetings schedule

The current City schedule has repeatedly pushed back the third and fourth Section 106 meetings, originally set for May and June, to unspecified dates in “fall 2018.”  Although the dates remain uncertain, Jackson Park Watch is pleased to note that the unreasonably truncated meeting schedule that the City had posted for July and August 2018 is no longer in effect and that the City’s plan to shoehorn multiple important topics into one meeting has apparently been abandoned.

The next Section 106 meeting is expected to focus on an “Assessment of Effects” report that it is expected to identify “adverse impacts” of the proposed Obama Presidential Center and related road closures and realignments on the historic property, that is, on Jackson Park.  According to a recent communication from the FHWA IL Division Administrator Catherine A. Batey, the City itself is preparing this Assessment of Effects report, once again raising concerns about conflict of interest.  Also of concern is a “hidden commentary” (see below) that has not been subject to public review.  The Assessment of Effects report is to be available for a 30 day comment period during which the official Section 106 meeting will be held to allow input by the consulting parties. 

Consulting parties have asked that direct notice be given when the Assessment of Effects report is posted, that the scheduling of the meeting allow ample time for prior review, and also that the up-coming important family and religious holidays be kept in mind as the agencies make plans.

Further meetings will then discuss measures to avoid, minimize, or mitigate adverse effects; discuss alternatives with the consulting parties; and complete the process.  The timing of these is unclear.  

Problem #2: Hidden Commentary

A commentary commissioned by the Obama Foundation in support of its applications was mentioned (though never shared in the public record) at the May 17 2018 Plan Commission hearing. JPW had to file a FOIA request in order to secure a copy of the Report and Opinion Concerning the Impact of the Proposed Obama Presidential Center on the Cultural Landscape of Jackson Park, which asserts that the plans for the OPC and its road changes are fully compatible with the historic Olmsted design of Jackson Park. JPW and others presume that the purpose of this commentary is to counter the substantial amount of expert testimony already in the Section 106 records  that points instead to adverse impacts of these plans on the historic design of Jackson Park.

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.  According to the City’s presentation at the December 2017 Section 106 meeting, a NEPA review typically addresses a wide range of factors including noise, traffic, wildlife/habitat, air & water quality, and socioeconomic impacts. “Meaningful public input” is required, culminating in a formal public hearing.  A proper NEPA review should include:

  • 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 these factors;
  • 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.

How is the NEPA review progressing?

The NEPA review is currently underway behind closed doors, concurrent with 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  – the “Purpose and Need” statement, the “Alternatives To Be Carried Forward“, and the “Prefered Alternatives” – have proven to be very controversial, and have drawn many challenges from JPW and other consulting parties (see below).

A very important change occurred in mid-summer when the National Park Service became the lead agency for the NEPA review, replacing the Federal Highway Administration.  The National Park Service did hold an initial NEPA public information meeting on September 17, 2018.  The meeting included a video presentation and opportunities to ask questions of NPS staff people who were in attendance.   There was no discussion of the controversial NEPA documents.  The current City schedule indicates that next NEPA meetings will not begin until 2019.  Information on the September 17 meeting is available on the City website, where the  City has posted a video of the presentation and the presentation boards

The City’s first step  – the “Purpose and Need” statement  – is badly flawed

Prior to the change in leadership of the NEPA review, the City – with the approval of the Federal Highway Administration – had already published a controversial and potentially illegal “Purpose and Need” statement, a key document in any NEPA review process. As of mid-November 2018 it remains to be seen whether this change in federal agency leadership will impact this controversy.

Problem #1: Seriously flawed descriptions of the project baseline condition

In this NEPA review, the proposed project is the construction of the OPC and the related road changes. Key to the entire NEPA process is the identification of the “No-Action Alternative baseline condition” used as the starting point for the review.  The proper baseline is the pre-existing condition of the area – that is, Jackson Park – plus any changes to the park roads that were planned to take place even if the proposed project (i.e., the OPC) were not constructed.  In this instance, therefore, the proper No-Action Alternative baseline condition would be the current configuration of Jackson Park and its roads.  However, the City has improperly asserted that the No-Action Alternative baseline condition is the condition that would exist after the OPC is constructed and after all of the proposed road changes are implemented.

The City is making this flawed assertion despite the fact that a similar attempt to claim a completed project as the “No-Action Alternative” baseline was found to be illegal by a federal court in 2015 in the case concerning the proposed Illiana Expressway. Since the defendants in that case included the U.S. Department of Transportation and the Illinois Department of Transportation, it is highly likely that CDOT is well aware of it.

Problem #2: Attempt to use the South Lakefront Framework Plan as a cover

In an attempt to justify this flawed Purpose and Need statement, the City is asserting 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 those plans, and no discussion or consideration of alternatives was allowed during the SLFP process.

Problem #3: Failure to include proper public input

NEPA legislation requires public input in the development of the Purpose and Need statement. This step has been completely omitted in this present process. Instead, as documented in responses to FOIA requests, City staff, in consultation with FHWA and others, developed the Purpose and Need statement internally without public involvement. Further, they planned to claim that public presentations about the OPC and SLFP with no discussion of NEPA would constitute the required public input.

The City’s second step is equally flawed

The second step in a NEPA review is to identify alternative ways of meeting the defined Purpose and Need, outlined in the so-called  “Alternatives to Be Carried Forward” document.  If the “Purpose and Need” is to accommodate the siting of the OPC in Jackson Park, examination of alternatives to the CDOT-proposed traffic plan with less adverse impacts on the No-Action Alternation baseline condition should be required.  Further, the NEPA review should include consideration of other environmental impacts mandated by law traffic, air & water, noise, etc., as noted above.

Problem #4: Flawed baseline description leads to flawed statement of alternatives to be evaluated

Using its flawed definition of “purpose and need,” the City has proceeded to develop a draft “Alternatives to Be Carried Forward” document that – no surprise, perhaps, given its assumptions – finds that the only acceptable alternative to be “carried forward” to be evaluated is the CDOT plan itself as approved by the Plan Commission May 17 2018. Among other things, it completely ignores the JPW-commissioned alternative traffic plan that would have fewer adverse impacts on the No-Action Alternative baseline.                                                                                                                                    Problem #5: The City’s attempt to avoid a proper NEPA review would exclude vital topics.

By proposing to evaluate only the CDOT-traffic plan in its completed state, the City proposes to completely avoid evaluation of these other essential components of a proper NEPA review.

This is the status of the NEPA review to-date.  In short, at this point, there has been a fatally flawed false start, which can lead only to a flawed conclusion.  We can hope that the change in agency leadership will address some of these serious problems.

JPW submitted a lengthy letter to DPD, CDOT, and FHWA detailing the myriad ways in which DPD and CDOT – with apparent concurrence by the FHWA – is violating the legal requirements for the conduct of a proper NEPA review. It has been shared with the NPS. You can read it here.  Other consulting parties have submitted similar statements.

What is a “4(f)” review?

Section 4(f) has been part of 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 transportation projects. Jackson Park is 4(f) property and thus a 4(f) review is required.  The City had largely avoided mentioning a 4(f) review until its flawed  “Alternatives to Be Carried Forward” document noted above.

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.  The current project to construct the OPC and make multiple roadways changes in Jackson Park uses Section 4(f) property.  Importantly, Section 4(f) is a substantive rather than a procedural law, and precludes project approval if there is a use of a historic site when a prudent and feasible avoidance alternative is available. 

Problem: Attempted subversion of the 4(f) requirement

Despite the clear 4(f) requirement in law for substantive 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 legitimate 4(f) review is unnecessary.  Along the way, the City is disregarding the alternative traffic plan commissioned by JPW and submitted to the City. That plan presents an alternate traffic plan that would accommodate the OPC siting in Jackson Park without the need to close Cornell.

What is a UPARR review?

A UPARR review is also required under the Urban Parks and Recreation Recovery Act of 1978. Because Jackson Park received two UPARR grants for improvements 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.

The City has implied that the National Park Service, which is also in charge of the UPARR review, has 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, and in fact has conducted several “community” meetings under that premise.  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, the NPS has said that new parkland in the area is an appropriate “replacement” alternative.

WHAT YOU CAN DO

JPW urges all of those with concerns about these serious federal review procedural problems to communicate them with the officials and media outlets.  Key points might include:

    • The need for the City and FHWA to insure full involvement of the consulting parties in the Section 106 process.  
    • The need for the City, FHWA, and NPS to ensure a proper review of alternatives to the proposed road closures/realignments that would have fewer adverse impacts on historic Jackson Park.
  • The need for the City and NPS to comply with the legal requirements of a legitimate NEPA process.
  • The observation that the South Lakefront Framework Plan is merely a ex post facto planning framework that does not, did not, and cannot mandate the construction of the OPC or the accompanying road changes.

Officials who need to hear from you are listed below.  You could send the same letter to them all.

At the City level:

At the Obama Foundation:

At the State level:

At the Federal level:

You may wish to send copies (bcc or otherwise) of your letters to these media outlets and reporters.  Include your address and contact information.