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?

There has been an important change in how the reviews are handled.  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.  Information on the significance of this change and how the agencies will coordinate is not yet fully clear. 

Under the original arrangement, JPW had concerns because delegation to the City and CDOT meant that CDOT was delegated to review the road changes proposal that it developed itself.  JPW had written the Federal Highway Administration expressing those concerns.  Additionally, 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 not provided full information about the reviews, which had been proceeding largely behind closed doors.  Perhaps some of the problems with the review processes to date noted below will now be addressed.  JPW will update this website and the sections below as information becomes available.

What is a “Section 106 review”?

A Section 106 review is required under the National Historic Preservation Act of 1966. It requires federal agencies to consider the effects of their plans on historic properties; Jackson Park and the Midway Plaisance are listed on the National Register of Historic Places as are nearby communities. It began December 1, 2017 and is projected to last until at least December 2018.

The first step in this review is complete.  It involved developing a draft inventory of historic properties in the affected areas.

Subsequent steps in the Section 106 review involve:  

  • identifying potential “adverse impacts” on the historic properties 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, and a subsequent meeting on March 29 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.

For example, the comments submitted after the March 29 meeting have not been posted on the City’s website. (Many comments submitted after both meetings are available on the JPW website). The City has not communicated with the consulting parties regarding the comments and questions they have submitted to date. The City does not share notifications regarding meetings, schedule changes or the posting of additional documents with the consulting parties.

The Section 106 meetings schedule

The current City schedule has pushed back the third and fourth Section 106 meetings, originally set to continue in May and June, to unspecified dates in July and August.  Before the July meeting can occur the governmental agencies (FHWA, NPS, and also the Illinois State Historic Properties Officer) must agree on and release a final version of the Historic Properties Inventory. According to the City, this final document would serve as the basis for the “Effects Assessment reports” to be prepared by NPS and FHWA – also before the July meeting – and then presented for public review and comment in undefined “workshops” at the July meeting. The City schedule indicates that that same July meeting would also include an initial discussion of mitigation measures. The projected August meeting would then consider a draft mitigation plan and a draft Memorandum of Understanding.

Problem #2: Unreasonable meeting schedule, packed agendas

This unreasonable agenda for the July Section 106 meeting – presentation of the final Historic Properties Inventory report and of the Effects Assessment as well as initial discussion of mitigation measures – will virtually ensure that adequate consideration, discussion, and consulting party input cannot occur.

The City’s proposed schedule raises serious concerns about timing. It is unclear how the consulting parties could have adequate time to review the final version of the Historic Properties Inventory let alone the highly significant proposed Effects Assessment report prior to the meeting. The role of the consulting parties in the Section 106 process is thus being thoroughly undermined.

The City’s intent is to follow quickly with an August meeting at which a draft mitigation plan and a draft Memorandum of Understanding would be presented. It seems clear that such a rushed schedule cannot accommodate adequate public review and input to properly inform those documents.

 

Overall, this tight schedule is a subversion of the Section 106 process.  A standard Section 106 review for a project of this scale would be expected to take well over 12 months or more.  The City is attempting to foreshorten and compress the review into nine months. This extraordinary truncation risks undercutting the validity of the review.

Problem #3: 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 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.  According to the City’s presentation at the December 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 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 (LINK). Although these documents appear to have been under development for months, no public meeting relating to NEPA has yet been scheduled, and the current City schedule indicates that NEPA meetings will not begin until August.  They are set to extend through December.

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

The “Purpose and Need” statement that begins a NEPA review should be developed with public input. In this instance, the proposed project is the construction of the OPC and the related road changes. Key to the entire process is the identification of the “No-Action Alternative baseline condition” used as the starting point for the review.  That baseline is the pre-existing condition plus any changes to the road configuration that were planned even if the proposed project (i.e., the OPC) were not constructed.  In this instance, the No-Action Alternative baseline condition would be the current configuration of the Park and its roads.

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

The City, which drafted the “Purpose of and Need for Action” statement in collaboration with the FHWA, is incorrectly asserting that the “purpose and need” for the NEPA review is to accommodate the traffic problems resulting from the completed project. Further, it is asserting that that the No-Action Alternative baseline condition for the review is the condition in which roadways closure and realignments are in place and the OPC has already been constructed in Jackson Park.
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 definition of the Purpose and Need statement for the NEPA review and of the baseline condition, the City is asserting that the Park District’s South Lakefront Framework Plan (SLFP) requires construction of the OPC in Jackson Park along with its 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, which here are outlined in the “Alternatives to Be Carried Forward” document.  For example, if the “Purpose and Need” is to accommodate the siting of the OPC in Jackson Park, examination of alternatives to the CDOT-propose 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. 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 elements.

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, this is a fatally flawed false start, which can lead only to a flawed conclusion.

JPW has submitted a lengthy letter to DPD, CDOT, and FHWA detailing the myriad ways in which DPD and CDOT – with seeming concurrence by the FHWA – is violating the legal requirements for the conduct of a proper NEPA review. You can read it here.

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 has largely avoided mentioning a 4(f) review until the “Alternatives….” 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, 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. Instead, under cover of its flawed “Alternatives….” document , the City is asserting that such a legitimate 4(f) review is unnecessary.

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 early1980s, 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. This review, conducted by the National Park Service, is also underway although little verifiable information has been released to the public.

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 and FHWA 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 a single letter to them all.

At the City level:

At the Obama Foundation:

At the State level:

At the Federal level:

  • FHWA Environmental Programs Engineer Matt Fuller at Matt.Fuller@dot.gov – Fuller is the lead FHWA official with responsibility for signing off on these federal reviews.
  • Department of Transportation Federal Preservation Officer David Clarke at David.Clarke@dot.gov
  • National Park Service Section 106 Compliance Officer Jeffrey Durbin at Jeffrey_Durbin@nps.gov  
  • Advisory Council on Historic Preservation Analyst Sarah Stokeley at sstokely@achp.gov

You may wish to send copies (bcc or otherwise) of your letters to these media outlets and reporters: