This section provides a brief overview of Section 4(f) of the U.S. Department of Transportation Act of 1966 and its implications for the transportation community.
Section 4(f) of the U.S. Department of Transportation Act of 1966 (U.S. DOT Act) was enacted as a means of protecting publicly-owned public parks, recreation areas, and wildlife/waterfowl refuges as well as historic sites of local, state or national significance, from conversion to transportation uses.
The provision states that the Secretary of the U.S. DOT may approve a transportation project requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge, or land from an historic site of national, state, or local significance (as determined by the federal, state, or local officials having jurisdiction over the park, recreation area, refuge or site) only if:
- OR –
Section 4(f) was originally set forth in Title 49 U.S. Code (USC) Section 1653(f). The provision was later recodified at 49 USC Section 303; a similar provision that applies only to the highway program may be found in 23 USC Section 138. With the recodification, the original provision no longer exists, but Section 4(f) remains the common name for both statutes. The de minimis provision was added by Congress in 2005, as part of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).
The U. S. DOT has established a review process for any Section 4(f) resource that may be impacted by a federally-aided transportation project or program. If the U.S. DOT makes a determination that its project will have a minimal – or “de minimis” – impact on a protected resource, then the Section 4(f) process is complete. If there is a 4(f) use that is not de minimis, then the agency must evaluate whether there are “feasible and prudent” avoidance alternatives to use of the property, and if not, then it must undertake all possible planning to minimize harm to the property.
SAFETEA-LU required the U.S. DOT to issue regulations clarifying the factors to be considered and the standards to be applied when determining if an alternative for avoiding the use of Section 4(f) property is feasible and prudent. In the final rule, published March 12, 2008, the Federal Highway Administration and Federal Transit Administration incorporated additional balancing factors into the determination of whether an avoidance alternative is feasible and prudent.
The rulemaking also incorporates the procedures for determining that the use of a Section 4(f) property has de minimis impacts. It also updates the regulation to recognize certain exceptions for uses that advance Section 4(f)'s preservationist goals, as well as the option of conducting certain Section 4(f) evaluations on a programmatic basis. The rulemaking recodified Section 4(f) regulations, moving them out of the agencies' NEPA regulations (23 CFR part 771) and into a separate part of 23 CFR (part 774), with a reorganized structure that is easier to use.
Section 4(f) is a complex process with a lengthy history of legal decisions and court interpretations of how to apply the statute. Over the years, definitions and decisions from case law have brought the Section 4(f) criteria to an increasingly more stringent level. Section 4(f) remains one of the most frequently cited issues in litigation against transportation agencies. Therefore, it is essential that clear and thorough documentation be prepared for Section 4(f) uses.
Evaluation and documentation of Section 4(f) resources is typically addressed as part of the National Environmental Policy Act (NEPA) process for a transportation project and the analysis, results, and conclusions are typically incorporated into the NEPA documentation.
The remaining sections of this overview are intended to provide a brief introduction to Section 4(f) issues.
For more detailed information, please refer to the following Federal Highway Administration (FHWA) resources:
Section 4(f) only applies to U.S. DOT agencies. These agencies include FHWA, Federal Transit Administration (FTA), Federal Railroad Administration (FRA), and Federal Aviation Administration (FAA). Projects involving U.S. DOT actions, such as federal funding or other U.S. DOT approval (e.g. Interstate access point approval by FHWA), must comply with Section 4(f). The U.S. Coast Guard, since it is now part of the Department of Homeland Security, no longer has to comply with Section 4(f). Non-U.S. DOT agencies such as the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, do not have to comply with Section 4(f).
In addressing Section 4(f), transportation agencies must first determine whether Section 4(f) properties are involved. Properties protected under Section 4(f) are publicly owned public parks, recreation areas and wildlife and waterfowl refuges, as well as historic sites of national, state, or local significance (whether publicly or privately owned).
Section 4(f) only applies to those public parks, recreation areas, and refuges that are publicly owned, and for which the officials having jurisdiction over the property determine that its major purpose is to function as a park, recreation area, or refuge. In addition, it must be shown that these properties are significant and (except in the case of refuges) are open to the general public. Access restrictions and/or lack of significance for park/recreation/refuge purposes may remove the property from Section 4(f) status.
Where publicly owned property is managed for multiple uses, including non-recreational/refuge and recreational and/or refuge purposes, Section 4(f) may apply to only the recreational and/or refuge portions of the property. The recreation areas are identified through review of a management plan and/or coordination with the officials with jurisdiction over the property. Examples of such properties are National or State Forests and Bureau of Land Management holdings that may have functions such as timber management or general conservation in addition to park, recreation, or refuge purposes.
The eligibility determinations made in accordance with Section 106 of the National Historic Preservation Act of 1966 are used to identify historic sites of national, state, and local significance. Section 4(f) properties are those historic properties determined to be eligible for listing on the National Register of Historic Places in consultation with the State Historic Preservation Officer (SHPO)/Tribal Historic Preservation Officer (THPO) and the Advisory Council on Historic Preservation (if participating), or that are already listed on the National Register. On rare occasions there may be an historic resource that does not qualify as eligible under Section 106, but if information is provided that the historic site is of local significance, FHWA may determine that it is appropriate to apply Section 4(f).
Unlike parks, recreation areas, and refuges, Section 4(f) applies to all eligible/listed historic sites regardless of whether they are publicly owned or privately owned.
Eligible/listed historic districts also are considered Section 4(f) resources, although Section 4(f) would not apply to portions of historic districts that do not contribute to the historic significance the district. Archaeological sites only fall under the jurisdiction of Section 4(f) if they are determined eligible under Section 106 and are determined to warrant preservation in place, versus being important chiefly because of what can be learned through data recovery.
The official with jurisdiction for historic properties is the SHPO/THPO. When the Advisory Council on Historic Preservation (ACHP) is involved in Section 106 consultation for a particular property, then they are also an official with jurisdiction. The National Park Service is also an official with jurisdiction when a National Historic Landmark is involved.
In 2006, the Interstate Highway system celebrated its 50th anniversary, making it potentially an eligible historic resource. Section 6007 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) exempts most of the Interstate Highway System from being considered as a Section 4(f) property. This exemption applies to the entire Interstate System, except for specific facilities designated by FHWA as having national and/or exceptional significance. All Interstate System elements that are exempt from Section 4(f) review are also exempt from Section 106 requirements, under the terms of an administrative exemption adopted by the Advisory Council on Historic Preservation in 2005. Together, these two exemptions will streamline the process for completing work on the Interstate Highway System across the nation.
The final list of Nationally and Exceptionally Significant Features of the Federal Interstate Highway System was published in the Federal Register on Dec. 19, 2006. Only those specific features of the Interstate Highway System included on this list of exceptions need to be addressed under Section 4(f) and Section 106. For more information, link to the Interstate Highway page on FHWA’s Historic Preservation website, and FHWA’s final guidance for applying the Section 6007 exemption for the Interstate Highway System.
Use of a Section 4(f) property occurs when there is a permanent incorporation of that property into a transportation project. This permanent incorporation can be through fee-simple acquisition or permanent easement. Temporary occupancies that are adverse in terms of the statute’s preservation purpose are also considered uses. 23 CFR 774.13(d) contains criteria that must be examined to determine if the temporary occupancy would be considered a Section 4(f) use.
A use also may occur if the proximity impacts to the Section 4(f) property result in substantial impairment of the features and attributes that qualify the resource as a Section 4(f) resource. These proximity impacts are referred to as constructive use.
It should be noted that constructive use is not often found to occur. Close coordination with the applicable FHWA division office and FHWA headquarters should be undertaken to determine whether a project involves a constructive use. The classic example of constructive use is placement of a new highway adjacent to a park with an amphitheater, where there is no physical encroachment into the park property, but noise from the new highway substantially impairs the enjoyment of concerts or other performances at the amphitheater. Additional information on constructive use is provided in the March 12, 2008, final rule.
Section 6009(a) of SAFETEA-LU amended existing Section 4(f) legislation to simplify the processing and approval of projects that have only “de minimis” impacts on resources protected by Section 4(f).
On Dec. 13, 2005, FHWA and FTA provided Guidance for Determining De Minimis Impacts to Section 4(f) Resources (superseded in 2012 by Section 4(f) Policy Paper). The Section 4(f) regulations issued on March 12, 2008 incorporate the basic requirements contained in the December 2005 guidance. The guidance remains in effect, but in the event of any inconsistency, the regulations take precedence over the guidance.
De minimis impacts are those that, after consideration of any measure(s) to minimize harm (such as any avoidance, minimization, mitigation, or enhancement measures), do not adversely affect the activities, features or attributes of the Section 4(f) property. A de minimis determination fulfills all Section 4(f) requirements. When a de minimis impact is determined, an evaluation of avoidance alternatives and whether or not they are feasible and prudent is not required. However, it is still necessary to implement measures to minimize harm (which must be taken into account when determining whether the impact is de minimis). A de minimis determination cannot be made when there is a constructive use since such a use, by definition, involves impacts to a Section 4(f) resource such that the protected activities, features, and attributes would be substantially impaired.
The law enacted slightly different provisions for historic sites than for parks, recreation areas, and refuges.
Historic Sites – For historic sites, a use is considered de minimis when:
- A “no historic properties affected” or “no adverse effect” determination is made in accordance with Section 106 of the National Historic Preservation Act, with concurrence in writing from the State or Tribal Historic Preservation Officer (SHPO/THPO) and the Advisory Council on Historic Preservation (ACHP) (if participating in the Section 106 consultation),
- The SHPO/THPO and ACHP, if participating, are notified by the FHWA or FTA of the intent to make a de minimis impact finding based on their written concurrence in the Section 106 determination, and
- The views of any consulting parties participating in the Section 106 process have been considered.
Parks, Recreation Areas, Wildlife/Waterfowl Refuges – For parks, recreation areas and refuges, a use is considered de minimis when, after taking into consideration appropriate mitigation measures, it is determined that:
- The transportation use of the property, with avoidance, minimization, or mitigation incorporated, would not adversely affect the activities, features and attributes that qualify the property for protection under Section 4(f),
- The officials with jurisdiction over the property agree, in writing, that the use will not adversely affect the features and attributes of the property, and they are informed by the FHWA or FTA of their intent to make a de minimis finding based on that agreement, and
- The public has been provided an opportunity to review and comment on the effects of the project on the protected activities, features, and attributes of the Section 4(f) property.
Section 4(f) is a substantive law, meaning there is a specific standard that must be met to demonstrate compliance. This is in contrast to procedural laws, such NEPA, where it must simply be demonstrated that the proper process was followed.
If a project uses a Section 4(f) property and a finding of de minimis impact is not made, FHWA or FTA can approve the use of that property only if they find that (1) there is no feasible and prudent avoidance alternative to the use of the Section 4(f) property, and (2) all possible planning to minimize harm to the Section 4(f) property has been incorporated into the alternative.
The Section 4(f) final rule clarifies the legal standards for making each of these findings.
Section 774.17 includes a new definition of the term “feasible and prudent avoidance alternative.“ The definition states that a feasible and prudent avoidance alternative is one that “avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property.” In assessing the importance of protecting the Section 4(f) property, the rule states that “it is appropriate to consider the relative value of the resource to the preservation purpose of the statute.”
An alternative is not “feasible” if it cannot be built as a matter of sound engineering judgment.
An alternative is not “prudent” if:
This definition must be applied when determining whether it is possible to avoid the use of a Section 4(f) resource. It is similar to the previous regulation, but no longer requires a specific finding that an alternative has impacts of “extraordinary magnitude” or would cause “unique problems” in order to determine that the alternative is imprudent. Instead, the regulation allows an alternative to be rejected as imprudent as long as it has “severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property.”
Where there is no feasible and prudent avoidance alternative (and a finding of de minimis impact has not been made), then the agency may approve the project only if it “includes all possible planning, as defined in § 774.17, to minimize harm to the property resulting from such use.” See 23 CFR 774.3(a)(2). Section 774.17 defines “all possible planning” to mean that “that all reasonable measures identified in the Section 4(f) evaluation to minimize harm or mitigate for adverse impacts and effects must be included in the project.” The definition then states that, in determining whether measures to minimize harm are reasonable, the agency shall “consider the preservation purpose of the statute” and the following factors:
The regulation also states that, if there is no feasible and prudent avoidance alternative, the agency “may approve only the alternative that causes the least overall harm in light of the statute's preservation purpose.” The “least overall harm” is determined by balancing the following list of factors:
Where Section 4(f) properties are used by a proposed action, a Section 4(f) evaluation will need to be prepared (unless one of the programmatic Section 4(f) agreements applies or the Section 4(f) uses are de minimis). The Section 4(f) evaluation will:
Regarding documentation of the Section 4(f) process, a draft Section 4(f) evaluation is generally prepared as part of the NEPA process. The draft Section 4(f) evaluation must be reviewed and approved by the FHWA Division Office to be made available to the officials with jurisdiction over the Section 4(f) property, the Department of the Interior, and where applicable, the Department of Housing and Urban Development and/or the Department of Agriculture. The draft Section 4(f) evaluation must be provided to these agencies for a minimum 45-day review and comment period.
Any comments received on the draft Section 4(f) evaluation should be addressed and a final Section 4(f) evaluation prepared. The final evaluation is provided to FHWA’s legal counsel for a legal sufficiency review before it is finalized. Legal sufficiency review is essentially an assessment of whether the Section 4(f) evaluation is legally sound and is likely to hold up in court should there be a legal action against the project.
The draft Section 4(f) evaluation provides all the information on the Section 4(f) properties, uses, alternatives analysis, and measures to minimize harm. However, it is not until the final Section 4(f) evaluation that concluding statements are added indicating that there is no feasible and prudent alternative to the use of Section 4(f) properties, all possible planning to minimize harm has been incorporated, and that a specific alternative is the alternative that would result in the least overall harm.
For projects requiring an Environmental Impact Statement (EIS), the draft Section 4(f) evaluation is typically provided for review and comment as an attachment to, or as a chapter of the Draft EIS. Conveniently, both documents require a minimum 45-day comment period. The final Section 4(f) evaluation addresses any comments received and is then included with the Final EIS.
For projects requiring an Environmental Assessment (EA), the draft Section 4(f) evaluation is typically provided for review and comment as part of the Environmental Assessment. Whereas the draft Section 4(f) evaluation has a minimum 45-day comment period, the required period of availability for an EA is 30 days. Where an EA involves Section 4(f) uses, a 45-day comment period may be provided to cover both regulatory requirements. The final rule issued on March 12, 2008, provides that if no response is received within 15 days following the end of the comment period the Department of Transportation “may assume lack of objection and proceed with the action.”
For Categorical Exclusions (CEs), the draft Section 4(f) evaluation is typically prepared as a separate document and may be distributed for the 45-day review and comment period independently or with the CE documentation attached.
All final Section 4(f) evaluations must be reviewed for legal sufficiency. The final Section 4(f) evaluation will include a statement indicating that there is no feasible and prudent alternative to the use of Section 4(f) properties and that the chosen alternative incorporates all possible planning to minimize harm and does the least overall harm.
A programmatic Section 4(f) evaluation is essentially a “pre-approved” Section 4(f) evaluation. There are five (5) nationwide programmatic evaluations dealing with the compliance of Section 4(f) in certain project situations. The March 2008 Section 4(f) regulations do not change the existing programmatic Section 4(f) evaluations, but do clarify that programmatic evaluations are authorized and clarify the circumstances under which they may be used. See 23 CFR 774.3(d).
Each of the programmatic evaluations was developed for Section 4(f) use situations that tend to occur frequently. For each programmatic evaluation, a Section 4(f) evaluation was written for the generic situation and published in the Federal Register for review and comment. A legal sufficiency review was conducted for the evaluations, comments were addressed, and the programmatic was approved. When applying a particular Section 4(f) programmatic evaluation to a specific project, it is only necessary to show that the criteria of the programmatic evaluation are met for your project. No review and comment period or legal sufficiency review is required.
Programmatic Section 4(f) evaluations are neither a form of automatic compliance with the statute nor a waiver of it. As such, an avoidance alternatives analysis applying the feasible and prudent standard is still required for each of the Section 4(f) programmatic evaluations. The evaluations can save time because a project-specific 45-day review and comment period and a legal sufficiency review are not required.
The five nationwide programmatic Section 4(f) evaluations are as follows:
The two programmatic evaluations addressing minor involvements cannot be used for projects being processed as Environmental Impact Statements. The net benefits programmatic evaluation, which was published in the Federal Register on April 20, 2005, and the historic bridge programmatic, can be used with all NEPA processing options.
Links to the programmatic evaluations can be found on the Nationwide Section 4(f) Programmatic Evaluations page on the FHWA website.
With de minimis findings and five programmatic Section 4(f) evaluations, it can be confusing to decide how to approach the Section 4(f) evaluation. It is possible that a use could be found to be de minimis, but the programmatic for minor uses of historic sites or the net benefit programmatic also could apply. So how should agencies approach this decision? As a general rule, Section 4(f) evaluation decisions will be addressed in the following ways (as applicable):
The first step is to assess whether any/all of the Section 4(f) uses are de minimis. Where de minimis is applicable it should be the first choice, since an avoidance alternatives analysis applying the feasible and prudent standard is not required for de minimis uses.
Where de minimis does not apply or only applies to some of the uses, agencies should check to see whether they meet the requirements of the net benefit programmatic or one of the other Section 4(f) programmatic evaluations. The historic bridge and net benefit programmatics can be used on projects being processed as EISs. While the programmatics still require an assessment of whether feasible and prudent avoidance alternatives are available, they do not have a review and comment period and do not require a legal sufficiency review.
When there are uses that are not de minimis or one or more of the programmatic evaluations do not apply, then an individual Section 4(f) evaluation must be prepared.
The Land and Water Conservation Fund Act (LWCFA) of 1965 (16 USC 4601-4 et seq.) was enacted to establish a funding source to assist the States and Federal agencies in meeting present and future outdoor recreation demands and needs. Federal assistance (funding) from the act is authorized to the States for the planning, acquisition, and/or development of needed land and water resources or utilized, directly, by Federal agencies for the acquisition and development of “certain lands.” Text of the LWCF Act and the associated regulations at 36 CFR Part 59.1 can be found at http://www.nps.gov/lwcf/.
The LWCF Act is administered by the Department of the Interior (DOI)/National Park Service (NPS) which, in turn, delegates many of the roles and responsibilities to a department within each state, whose Secretary then serves as the State Liaison Officer.
Section 6(f) of the act requires that all properties “acquired or developed, either partially or wholly, with LWCF funds” must be maintained as such in perpetuity. Section 6(f)(3) states that those properties acquired or developed with LWCF funds shall not be converted to a use other than public outdoor recreation without the approval of the Secretary of the DOI, acting through the National Park Service and at the request of the state delegate/State Liaison Officer.
Section 6(f) of the Act prohibits the conversion of property acquired or developed with LWCF grants to a non-recreational purpose without the approval of the Department of the Interior’s National Park Service. Section 6(f) further directs DOI to assure that replacement lands of equal fair market value, location, and usefulness are provided as conditions to such conversions. Consequently, where conversions of Section 6(f) lands are proposed for highway projects, replacement lands will be necessary.
There is an overlap between Section 4(f) and Section 6(f). Lands acquired and/or developed with LWCF funds are generally public parks or recreation areas, and therefore, are both Section 4(f) properties and subject to the requirements of Section 6(f). In identifying Section 4(f) properties, it is important to determine whether Section 6(f) LWCF funds were used to purchase all or part of the Section 4(f) property, or to develop a specific part of the property.
The statute (LWCF Act) states that replacement land "of at least equal fair market value and or reasonably equivalent usefulness and location" be provided where Section 6(f) property or features are converted to other uses. Therefore, when considering mitigation for a resource that is both a Section 4(f) property and a Section 6(f) resource, those mitigation measures should take into consideration the Section 6(f) requirements in addition to the Section 4(f) requirements, so that both statutes can be addressed.
Where Section 6(f) property will be converted to other uses by a project, approval for the conversion must be granted by the NPS at the request of the State Liaison Officer. In accordance with 36 CFR Part 59.3(b), the request should be in writing and must provide the NPS Regional Director with relevant information regarding the following prerequisites for conversion:
Cases may arise in which LWCF funds were used to purchase and/or construct items or equipment to enhance the recreational use of a park; however, the park land itself, was not acquired with these funds. Generally, in these situations it is important to review the boundary maps of the Section 6(f) property and coordinate with the NPS or State Liaison Officer to determine the effect of equipment placement on the recreational use of the property. In other words, establish whether the placement of the equipment creates a Section 6(f) property by extension and, if so, the extent of the property boundary.
The Fair Market Value of the replacement property should be assessed by an approved appraiser. As a general rule, if the value of the land taking is less than $5,000, a full appraisal is not necessary and the assessment will not be challenged by NPS appraisers. If the value of the land is greater than $5,000, a full appraisal should be conducted and the final figures must be approved by NPS.
Although replacement property should be identified at the time of the conversion request, there may be cases in which this is not possible. If this issue arises, a commitment must be made that the replacement requirements will be satisfied within a specified period of time (not to exceed one year); although every effort should be made to meet these requirements as soon as possible.
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