Environment - Compliance

• Section 4(f) Guidance
• Section 6(f) Guidance 
• Related Statutes Comparison Chart

Materials

Procedures

The Draft 4(f) evaluation, when not included in a NEPA EIS or EA document, is required to be sent to the appropriate FHWA Transportation / Environmental Engineer assigned to each WSDOT Region. Two physical copies are to be mailed to the appropriate staff member at the addresses available on the FHWA Washington Division website. These Draft 4(f) documents will be sent to legal staff for legal sufficiency through the Division Office.

Following the FHWA legal sufficiency review and subsequent requested changes to the document, the Final (4) evaluation document is required to be distributed to the appropriate government entities and quantities listed on the 4(f) Distribution List (pdf 305 kb). 

If the Section 4(f) evaluation is included in a draft EIS, the DOI Headquarters does not need additional copies of the draft or final EIS/Section 4(f) evaluation. If the Section 4(f) evaluation is processed separately or as part of an EA, the DOI should receive seven copies of the draft Section 4(f) evaluation for coordination and seven copies of the final Section 4(f) evaluation for information. In addition to coordination with DOI, draft Section 4(f) evaluations must be coordinated with the officials having jurisdiction over the Section 4(f) property and the Department of Housing and Urban Development (HUD) and the United States Department of Agriculture (USDA) where these agencies have an interest in or jurisdiction over the affected Section 4(f) resource (23 CFR 771.135(i)). The point of coordination for HUD is the appropriate Regional Office and for USDA, the Forest Supervisor of the affected National Forest. One copy should be provided to the officials with jurisdiction and two copies should be submitted to HUD and USDA when coordination is required.

A Programmatic Section (4) evaluation, unlike a Section 4(f) Evaluation, does not require a draft, a comment period, or circulation. Thus, although similar contacts and approvals must be negotiated with the responsible land stewards or officials, the approval process for programmatic evaluations is usually less time consuming.  Time Estimates (pdf 205 kb) for producing and review of Programmatic and Evaluations are available.

Additional information from FHWA concerning format and content is available in Technical Advisory T 6640.8A, pages 31-33, IX. SECTION 4(f) EVALUATIONS-FORMAT AND CONTENT. It should be noted that a Final Individual 4(f) Evaluation must contain the following conclusion statement:  "Based upon the above considerations, there is no feasible and prudent alternative to the use of land from the (identify Section 4(f) property) and the proposed action includes all possible planning to minimize harm to the (Section 4(f) property) resulting from such use.

How is Section 4(f) Associated with Section 106 and
Section 6(f)?

Section  106
Section 4(f) stipulates that in order for a cultural resource to be granted protection, it must be considered significant. The Section 106 process is the method by which a cultural resource's significance is determined. 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 by the 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.
  
• Section 4(f) Related Statutes Comparison Chart 

Summary

Section 4(f) is intended to prohibit the physical intrusion use of a proposed transportation project onto public parks, refuges, or historic sites. If unprotected, these passive public areas could slowly be chipped away by public and private projects, many with good intentions, until their best attributes were consumed or destroyed.

The Section 4(f) process requires avoidance of the use of Section 4(f) resources unless there is no feasible and prudent alternative to that use. If Alternatives to logically avoid impacts are not possible or have other unacceptable environmental, social, and/or economic impacts, then efforts must be documented to show that the alternative chosen has the least harm to Section 4(f) resources and includes appropriate mitigation to minimize harm.

For WSDOT proposals with a Federal USDOT nexus, always consult with the Regional Environmental Manager if it is not clear whether or not Section 4(f) applies to a specific project.