Highway 85 Reconstruction De Minimis

Section 4(f) refers to the original section within the U.S. Department of Transportation (USDOT) Act of 1966 which provided for consideration of park and recreation lands, wildlife and waterfowl refuges, and historic sites during transportation project development.

Section 4(f) requires that the Federal Highway Administration (FHWA) and other USDOT agencies cannot approve the use of land from publicly owned parks, recreational areas, wildlife and waterfowl refuges, or public and private historical sites unless the following conditions apply:

• There is no feasible and prudent avoidance alternative to the use of land; and the action includes all possible planning to minimize harm to the property resulting from such use; or
• the Administration determines that the use of the property will have a de minimis impact.
   

A de minimis determination may be made when all three of the following criteria are satisfied: 

1. The transportation use of the Section 4(f) resource, together with any impact avoidance, minimization, and mitigation or enhancement measures incorporated into the project, does not adversely affect the activities, features, and attributes that qualify the resource for protection under Section 4(f);
    
2. The public has been afforded an opportunity to review and comment on the effects of the project on the protected activities, features, and attributes of the Section 4(f) resource; and
    
3. The official(s) with jurisdiction over the property are informed of USDOT's intent to make the de minimis impact determination based on their written concurrence that the project will not adversely affect the activities, features, and attributes that qualify the property for protection under Section 4(f).
    

The North Dakota Department of Transportation (NDDOT), in cooperation with FHWA, is completing the final design for improvements along US Highway 85 (US 85) from Reference Point (RP) 120.3 to the Long X Bridge. The project is a reconstruction of the roadway to a four-lane section throughout the project corridor. A Final Environmental Impact Statement and Record of Decision (FEIS/ROD) was completed in February 2019 that analyzed different alternatives and feasibility of widening the highway in this area. Construction activities within the Section 4(f) property are anticipated to be completed during two construction seasons.

During development of the FEIS/ROD, US Forest Service (USFS) Management Area (MA) 3.51-Bighorn Sheep Habitat, was identified as a significant Section 4(f) property adjacent to the project corridor. Though the FEIS/ROD did not identify a use of this property, modifications to the project design to repair slide areas resulted in an unavoidable De Minimis impact to MA 3.51.

FHWA has reviewed the proposed impacts, avoidance, minimization, mitigation, and enhancement measures implemented with this project, and initial correspondence completed with the US Forest Service. FHWA intends to make a De Minimis Determination conditioned on the results of the public notice comment period. The determination is also contingent upon USFS’s written concurrence (agreement) that the project will not adversely affect the activities, features, and attributes that qualify the property for protection under Section 4(f). 
 

Incorporation of approximately 0.58 acres of land into two permanent roadway easements from the USFS MA 3.51 at RP 125.7 is proposed to accommodate the roadway design improvements. This location poses a maintenance challenge to the NDDOT District staff with material washing down the backslope and filling in the roadway ditch. The proposed permanent easements allow for a wider ditch and flatter backslope to be constructed, reducing the amount of soil washing down the hill. It will also improve safety and reduce future maintenance. Commitments will continue to ensure that the bighorn sheep will not be impacted. Timing restrictions for lambing season will remain in place between RP 124.1 to RP 126.4. Disturbed areas will be restored and reseeded following construction and all environmental commitments from the FEIS/ROD will be followed. Existing wildlife fencing within the grading limits of MA 3.51 will be taken down during construction operations. It will be replaced following suspension of construction for the winter season and when final construction is complete. No functions or activities associated with MA 3.51 will be affected.

Impact avoidance was studied during design by analyzing a modified narrow special ditch section to avoid cutting a backslope and needing to acquire permanent easement from MA 3.51. The existing backslopes are steep and any backslope modification would impact the MA 3.51 area. The existing ditch would need to be raised significantly (approximately 9-12 inches below top edge of pavement) with a reduced ditch width of 6 feet, inslope flattening to 10:1, and a proposed backslope of 4:1. The NDDOT Williston District noted existing maintenance issues in this location; this ditch modification would create future maintenance issues related to snow drifting/snow removal, drainage, and silt inundation in the ditch. Ultimately, this design would not address the needs of the project. 

The roadway design was modified as much as possible to minimize impacts to the MA, with right of way easement acquisition reduced to 0.58 acres. 

No mitigation is proposed. All disturbed areas will be restored and reseeded following construction and all environmental commitments from the FEIS/ROD will be followed.

The proposed project will also stabilize the area within and adjacent to MA 3.51, reducing landslides and erosion on the hillside.

As part of previous segments of the US 85 widening project, wildlife fencing was constructed. From RP 124.1 to RP 128.9, the primary bighorn sheep habitat range, the wildlife fencing is 10 feet tall. In total, south of the Long X Bridge within the current project’s corridor, 5.6 miles of wildlife fence was constructed.

A bighorn sheep wildlife crossing underpass was previously constructed at RP 126.1. The crossing is a concrete three-side arch bridge specifically designed for bighorn sheep. 
 

Comments must be submitted on or before August 8, 2024, to Garrett Hartl, NDDOT Design Division, Technical Contact, 608 E. Boulevard Ave. Bismarck, ND 58505 or ghartl@nd.gov. Comments will become part of the official record and will be considered when making future project related decisions. 

Language interpretation and translation services are available upon request. To request accommodations, contact Heather Christianson, Civil Rights Division, NDDOT, at 701-328-2978 or civilrights@nd.gov. TTY users may use Relay North Dakota at 711 or 1-800-366-6888.