Section 4(f) of the federal Department of Transportation Act (49 USC 303) concerns transportation projects that would use or impact a significant public park, recreation area, wildlife or waterfowl refuge, or historic site.
Policy
As passed by Congress in 1996, Section 4(f) declares a national policy "to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites". As amended in 2005 under Section 6009 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), the statute now includes a de minimis impact provision.
Requirements for Obtaining Approval
Under Section 4(f), the FHWA and other USDOT agencies cannot approve a transportation program or project that requires the use of any publicly owned land from a significant public park, recreation area, or wildlife and waterfowl refuge, or any land from a significant historic site, unless a determination is made that:
- The use will have no more than a de minimis impact on the area; or
- There is no feasible and prudent alternative to using the property; and
- The program or project includes all possible planning to minimize harm to the property resulting from the use.
Before approving use of these lands for a transportation project, supporting information must demonstrate that there are unique problems or unusual factors involved in the use of alternatives that avoid these properties, or that the cost, social, economic, and environmental impacts, or community disruption resulting from such alternatives reach extraordinary magnitude.
Unavoidable Impacts
In addition to mandating the physical protection of certain lands, (avoiding unintended physical "use" of them) Section 4(f) also addresses proximity impacts like noise and vibration which may constitute a "Constructive Use" without actually intruding into the protected area. FHWA rules require that when the physical location of a project will produce severe impacts to the activities, features, or attributes of a publicly owned park, recreation area, or wildlife and waterfowl refuge, or any significant historic site, then a Section 4(f) Evaluation must be completed. Proximity impacts may include:
- Resources affected by noise levels.
- Aesthetic features of the resource compromised by the transportation facility.
- Access restricted, substantially diminishing the utility of the resource.
- Vibrations impair use of the resource and diminish the value of wildlife habitat.
These impacts will only be considered a "Constructive Use" if they substantially impair the Section 4(f) resource.
Documenting Compliance
Section 4(f) is a federal requirement and needs to be considered in any NEPA document in which any USDOT agency (FHWA, FTA, FRA, FAA) is involved. However, not all NEPA actions require a 4(f) evaluation. For example, if a proposed project will not use Section 4(f) property, or if it will use Section 4(f) property but the use will only have a de minimis impact on the property, then the NEPA document need only explain that Section 4(f) does not apply or that the impact will be de minimis.
Programmatic Section 4(f) evaluations can also be used for highway projects which meet the programmatic criteria. The primary advantage of a programmatic evaluation is that it saves time. A programmatic evaluation does not require a draft, legal sufficiency review, or circulation, because its framework and basic approach has already been circulated and agreed upon by the US Department of the Interior (DOI).
A programmatic Section 4(f) evaluation does not relax the Section 4(f) standards, but only streamlines the amount of interagency coordination that would be required for an individual Section 4(f) evaluation. Interagency coordination is required only with the official(s) with jurisdiction and not with DOI, USDA, or HUD (unless the Federal agency has a specific action to take, such as DOI approval of a conversion of land acquired or developed using Land and Water Conservation Funds).
The use of five Programmatic Section 4(f) Evaluations may be applied by the Federal Highway Administration (FHWA) to projects which meet the following criteria:
1. Independent Walkway and Bikeways Construction Projects
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A. |
This programmatic 4(f) evaluation is only applicable for independent bikeway or walkway construction projects which require the use of recreation and park areas established and maintained primarily for active recreation, open space, and similar purposes.
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B. |
It is applicable only when the official having specific jurisdiction over the Section 4(f) property has given his approval in writing that the project is acceptable and consistent with the designated use of the property and that all possible planning to minimize harm has been accomplished in the location and design of the bikeway or walkway facility.
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C. |
It does not apply if the project would require the use of critical habitat of endangered species, the use of any land from a publicly owned wildlife or waterfowl refuge or any land from a historic site of national, State, or local significance. It also does not cover those projects where there are unusual circumstances (major impacts, adverse effects, or controversy). A separate Section 4(f) statement and environmental document must be prepared in these categories.
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D. |
This document does not cover bicycle or pedestrian facilities that are incidental items of construction in conjunction with highway improvements having the primary purpose of serving motor vehicular traffic.
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2. Historic Bridges
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A. |
The bridge is to be replaced or rehabilitated with Federal Funds.
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B. |
The project will require the use of a historic bridge structure that is on or is eligible for listing on the National Register of Historic Places.
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C. |
The bridge is not a National Historic Landmark.
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D. |
The FHWA Division Administrator determines that the facts of the project match those set forth in the section of this document labeled Alternatives, Findings, and Mitigation.
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E. |
The FHWA Division Administrator determines that the facts of the project match those set forth in the section of this document labeled Alternatives, Findings, and Mitigation.
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3. Minor Involvements with Historic Sites
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A. |
The proposed project is designed to improve the operational characteristics, safety, and/or physical condition of existing highway facilities on essentially the same alignment. This includes "4R" work (resurfacing, restoration, rehabilitation and reconstruction); safety improvements, such as shoulder widening and the correction of substandard curves and intersections; traffic operation improvements, such as signalization, channelization, and turning or climbing lanes; bicycle and pedestrian facilities; bridge replacements on essentially the same alignment, and the construction of additional lanes. This programmatic Section 4(f) evaluation does not apply to the construction of a highway on a new location.
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B. |
The historic site involved is located adjacent to the existing highway.
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C. |
The project does not require the removal or alteration of historic buildings, structures or objects on the historic site. |
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D. |
The project does not require the disturbance or removal of archeological resources that are important to preserve in place rather than to remove for archeological research. The determination of the importance to preserve in place will be based on consultation with the State Historic Preservation Officer (SHPO) and, if appropriate, the Advisory Council on Historic Preservation (ACHP).
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E. |
The impact on the Section 4(f) site resulting from the use of the land must be considered minor. The word minor is narrowly defined as having either a "no effect" or "no adverse effect" (when applying the requirements of Section 206 of the National Historic Preservation Act and 36 CFR Part 800) on the qualities that qualified the site for listing or eligibility on the National Register of Historic Places. The ACHP must not object to the determination of "no adverse effect."
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F. |
The SHPO must agree, in writing, with the assessment of impacts of the proposed project on and the proposed mitigation for the historic sites.
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G. |
This programmatic evaluation does not apply to projects for which an environmental impact statement (EIS) is prepared, unless the use of Section 4(f) lands is discovered after the approval of the final EIS.
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4. Minor Involvements with Parks, Recreation Areas and Waterfowl and Wildlife Refuges
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A. |
The proposed project is designed to improve the operational characteristics, safety, and/or physical condition of existing highway facilities on essentially the same alignment. This includes "4R" work (resurfacing, restoration, rehabilitation, and reconstruction), safety improvements, such as shoulder widening and the correction of substandard curves and intersections; traffic operation improvements, such as signalization, channelization, and turning or climbing lanes; bicycle and pedestrian facilities; bridge replacements on essentially the same alignment; and the construction of additional lanes. This programmatic Section 4(f) evaluation does not apply to the construction of a highway on a new location.
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B. |
The Section 4(f) lands are publicly owned public parks, recreation lands, or wildlife and waterfowl refuges located adjacent to the existing highway.
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C. |
The amount and location of the land to be used shall not impair the use of the remaining Section 4(f) land, in whole or in part, for its intended purpose. This determination is to be made by the FHWA in concurrence with the officials having jurisdiction over the Section 4(f) lands, and will be documented in relation to the size, use, and/or other characteristics deemed relevant. The total amount of land to be acquired from any Section 4(f) site shall not exceed the values in the following table:
| Total Size of Section 4(f) Site |
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Maximum to Be Acquired |
| < 10 acres |
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10 percent of site |
| 10 acres - 100 acres |
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1 acre |
| > 100 acres |
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1 percent of site | |
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D. |
The proximity impacts of the project on the remaining Section 4(f) land shall not impair the use of such land for its intended purpose. This determination is to be made by the FHWA in concurrence with the officials having jurisdiction over the Section 4(f) lands, and will be documented with regard to noise, air and water pollution, wildlife and habitat effects, aesthetic values, and/or other impacts deemed relevant.
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E. |
The officials having jurisdiction over the Section 4(f) lands must agree, in writing, with the assessment of the impacts of the proposed project on, and the proposed mitigation for, the Section 4(f) lands.
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F. |
For projects using land from a site purchased or improved with funds under the Land and Water Conservation Fund Act, the Federal Aid in Fish Restoration Act (Dingell-Johnson Act), the Federal Aid in Wildlife Act (Pittman-Robertson Act), or similar laws, or the lands are otherwise encumbered with a Federal interest (e.g., former Federal surplus property), coordination with the appropriate Federal agency is required to ascertain the agency's position on the land conversion or transfer. The programmatic Section 4(f) evaluation does not apply if the agency objects to the land conversion or transfer.
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G. |
This programmatic evaluation does not apply to projects for which an environmental impact statement (EIS) is prepared, unless the use of Section 4(f) lands is discovered after the approval of the final EIS. Should any of the above criteria not be met, this programmatic Section 4(f) evaluation cannot be used, and an individual Section 4(f) evaluation rust be prepared.
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| 5. Transportation Projects That Have a Net Benefit to a Section 4(f) Property |
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This nationwide programmatic Section 4(f) evaluation (programmatic evaluation) has been prepared for certain federally assisted transportation improvement projects on existing or new alignments that will use property of a Section 4(f) park, recreation area, wildlife or waterfowl refuge, or historic property, which in the view of the Administration and official(s) with jurisdiction over the Section 4(f) property, the use of the Section 4(f) property will result in a net benefit to the Section 4(f) property.
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Guidance Materials and Procedures
A variety of Section 4(f) Guidance Materials and Procedures are available to help WSDOT comply with the Section 4(f) statute.
Related Statutes
Section 106
Section 4(f) stipulates that in order for a cultural resource to be granted protection, it must be considered significant. Section 106 of the National Historic Preservation Act defines a process for determining whether a cultural resource is significant. Therefore, Section 106 is an integral part of Section 4(f) whenever cultural resources are involved.
Sections 106 and 4(f) are similar in that they both mandate consideration of cultural resources in the planning of a federal undertaking. But despite their similarities, the two statutes have some key differences. One of the most important distinctions between them is this: Whereas Section 106 requires that consideration be given to the effects a project has on cultural resources, Section 4(f) requires that a special effort be made to avoid the use of cultural resources. Under Section 4(f), the DOT must include all possible planning to minimize harm to historic sites (and other resources types) resulting from use of the resources by the project. Essentially, Section 4(f), supported by stronger case law, is viewed as a more powerful statute than Section 106.
Here are some other differences that you should be aware of:
- Section 4(f) applies only to programs and policies undertaken by agencies of the DOT, while Section 106 applies to programs and policies of any federal agency.
- Section 4(f) applies to the actual use or occupancy of a historic site, while Section 106 involves an assessment of adverse effects of an action on historic properties. There is no direct correlation between "use" in the Section 4(f) context and "effect" in the Section 106 context.
- The Section 106 process is integral to the Section 4(f) process when cultural resources are involved. The Section 4(f) process is not integral to the Section 106 process.
- The Section 4(f) process applies a more stringent analysis with respect to totally avoiding cultural resources than does the Section 106 process.
Section 6(f)
Because it is not uncommon for recreational resources to receive the Land and Water Conservation Fund Act (LWCFA) funding, Section 6(f) may be an integral part of Section 4(f) when recreational resources are involved. When you're dealing with Section 4(f) parks and recreation areas, it is critical to determine if the resources were funded with LWCFA funds.
While Section 6(f) is similar to the and recreation-related provisions of Section 4(f), there are some key differences:
- Whereas Section 4(f) applies only to programs and policies undertaken by the DOT, Section 6(f) applies to programs and policies of any federal agency.
- Mitigation opportunities are more flexible under Section 4(f) and may or may not include replacement lands. Section 6(f) directs the NPS to assure that replacement lands are of equal value, location and usefulness as impacted lands.
- Related Statutes Comparison Chart
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