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:
- There is no feasible and prudent alternative to using that land, and
- The program or project includes all possible planning to minimize harm to the Section 4(f) property.
- OR –
- The Section 4(f) use is de minimis.
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) Final Rule (March 12, 2008)
- Section 4(f) Policy Paper (Revised July 20, 2012)
- Section 4(f) De Minimis Guidance
- Applying the Section 4(f) exemption for the Interstate Highway System
- FHWA Technical Advisory – Guidance for Preparing and Processing Environmental and Section 4(f) documents