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localities that also were not invited to join in the Section 106 consultation. FRA cannot, therefore, satisfy its Section 106 obligations based on the information presented in the DEIS. Likewise, the Section 4(� Evaluation prepared for the Proposed Project is fundamentally flawed. That analysis is supposed to assist FRA in protecting publicly owned parklands, recreation areas, or historic sites of national, State, or local significance. Under Section 4(f) of the Department of Transportation Act of 1966, Pub. L. 89-670 (1966) (now codified at 49 U.S.C. § 303(c)), FRA is prohibited from approving any project that would "use" a Section 4(o resource unless it finds: (1) there is no prudent and feasible alternative to using that resource; and (2) the program or project includes all possible planning to minimize harm to the resource resulting from the use. 49 U.S.C. 303(c); FRA NEPA Procedures 5 12, 64 Fed. Reg. 28552. As discussed in the comments below, the Board believes the Section 4(f) Evaluation fails to identify or assess the effects of the Proposed Project on significant Section 4(f) resources, and does not provide FRA with a sound basis for issuing findings under Section 4(o. Similarly, the DEIS does not provide the analysis needed for a consistency determination under the federal Coastal Zone Management Act ("CZMA"), 16 U.S.C. � 1451 et seg. In light of the serious deficiencies the Board has identified in the DEIS and Section 4(o Evaluation, the Board is deeply concerned that the Proposed Project has already advanced well beyond the preliminary planning stage, and gives the appearance of becoming a fait accompli. FRA has allowed AAF to segment the environmental review of the Miami to West Palm Beach component ("Phase I") from other portions of the Proposed Project, and construction of Phase I has begun without a cumulative analysis of the impacts of the Proposed Project as a whole. Moreover, according to FRA's "On -Site Engineering Report — Part 2 for All Aboard Florida" (9/23/2014), engineering plans for portions of the Proposed Project running through (at least) Brevard and Indian River Counties are expected to be advanced to 90% by March 2015. Perhaps most alarming are statements within the DEIS itself that FRA has already made key determinations with regard to the Proposed Project at such an early point in the environmental review process that it did not even have the benefit of NEPA documentation to inform its decision-making. For example, the DEIS states "FRA has determined that the significant delays, costs, and risks associated with the use of elevated structures make raising any of the corridor bridges not feasible." DEIS at 5-27. The Board notes that NEPA prohibits federal agencies and applicants for federal agency approvals or funding from taking actions that would limit the choice of alternatives or otherwise signal premature approval of the application in advance of completion of the NEPA process. See FRA NEPA Procedures 5 7(c), 64 Fed. Reg. 28549; 49 C.F.R. 5 260.35(e); 40 C.F.R. § 1506.1. Typically, agencies within the USDOT use preliminary design work to prepare relevant NEPA documentation, in recognition of the fact that advancing design beyond that stage could tip the agency towards a commitment to a particular course of action without a fair and balanced consideration of reasonable alternatives. 3 C) I— A --Page 2 ] 824679 November 14, 2014