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?
The Federal Highway Administration (FHWA) is the official, legally responsible lead agency for all of these reviews. The actual work of managing the review processes has been delegated by FHWA to the Chicago Department of Planning and Development (DPD) and CDOT. Since this means CDOT is now delegated to review the road changes proposal that it developed itself, JPW noted this as problematic when it was first announced late last fall, and wrote the Federal Highway Administration expressing concerns about the seemingly conflicted dual role of CDOT in the review process.
Despite the significance of these proposed changes and their likely impact on an irreplaceable public park, the City’s DPD and CDOT have not provided full information about the reviews, which are now 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. 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.
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.
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.
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.
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.
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.
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:
- Chicago Mayor Rahn Emanuel at email@example.com
- CDOT Commissioner Rebekah Scheinfeld at Rebekah.Scheinfeld@cityofchicago.org
- CDOT Assistant Chief Highway Engineer John Sadler at firstname.lastname@example.org
- Chicago DPD Deputy Director Eleanor Gorski at Eleanor.Gorski@cityofchicago.org
At the Obama Foundation:
- Obama Foundation CEO David Simas at email@example.com
- Obama Foundation V.P. for Community Engagement Michael Strautmanis at firstname.lastname@example.org
At the State level:
- Illinois State Historic Preservation Officer Rachel Leibowitz at Rachel.Leibowitz@illinois.gov
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 email@example.com
You may wish to send copies (bcc or otherwise) of your letters to these media outlets and reporters:
- Chicago Sun-Times: firstname.lastname@example.org – also reporters Lynn Sweet at email@example.com , Rachel Hinton at firstname.lastname@example.org, and Fran Spielman at email@example.com
- Crain’s Chicago Business: firstname.lastname@example.org – also reporter Lisa Bertagnoli at email@example.com
- New York Times: firstname.lastname@example.org (limit of 150-175 words)
- Washington Post: email@example.com
- Chicago Tribune: firstname.lastname@example.org – also reporter Lolly Bowean at email@example.com
- Hyde Park Herald: firstname.lastname@example.org; email@example.com