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A Five-Minute Look at Section 4(f)
What is Section 4(f)? Section 4(f) refers to the original section within the Department of Transportation (DOT) Act of 1966 which set the requirement for consideration of park and recreational lands, wildlife and waterfowl refuges, and historic sites in transportation project development. The law, now codified in two places (49 U.S.C. 303 and 23 U.S.C. 138), is implemented by the Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) through regulations found at 23 CFR 771.135.
When does Section 4(f) apply? 4(f) applies to all projects that receive funding from or require approval by an agency of the U.S. DOT, including FHWA. Compared to the many environmental laws that apply to FHWA actions, 4(f) is considered to have stringent approval standards by statute and court interpretation.
What does Section 4(f) require? Before approving a project that "uses" a Section 4(f) resource, FHWA must find that there is no prudent and feasible alternative AND that the selected alternative minimizes harm to the resource. If there is a prudent and feasible alternative that completely avoids 4(f) resources, it must be selected. If there is no prudent and feasible alternative that avoids 4(f) resources, FHWA has some discretion in selecting the alternative that causes the least harm to 4(f) resources.
What is a Section 4(f) resource? 4(f) resources include any publicly owned public park, recreation area, or wildlife or waterfowl refuge or any publicly or privately owned historic site.
What is a "use"? In discussing 4(f), "use" may mean either a direct use or constructive use. A direct use occurs when land is permanently incorporated into a transportation facility or when there is a temporary occupancy of land that is adverse to a 4(f) resource. Constructive use occurs when a project's proximity impacts are so severe that the protected activities, features, or attributes that qualify a resource for protection under Section 4(f) are "substantially impaired".
What is feasible? An alternative is considered feasible if it can be constructed as a matter of sound engineering. Alternatives that are studied in a Draft Environmental Impact Statement or Environmental Assessment are almost always feasible; otherwise they should not be carried forward for detailed study.
What is prudent? The Supreme Court has defined an alternative as not prudent only if it involves "truly unusual factors" or "unique problems" or the cost of community disruption reaches "extraordinary magnitudes". FHWA uses a number of factors, including the project context and the severity of impacts to non-4(f) resources, in determining what is prudent.
What is least harm? FHWA must consider many factors, not just acreage of a 4(f) resource used. Does the project shave an edge of a resource as opposed to cutting through the middle? Alter an historic building versus alter surrounding land? Take an unused portion or a highly used portion of a park? FHWA must consider the net impacts of each alternative after mitigation measures have been taken into account. If two alternatives cause "substantially equal" harm to 4(f) resources, FHWA may choose either one.
Does Section 106 of the National Historic Preservation Act duplicate 4(f)? There is overlap, but they are two different types of requirements enacted by Congress on the same day in 1966. 4(f) is a substantive standard, while Section 106 is essentially a consultative procedural requirement.
Who makes the 4(f) decision for highway projects? FHWA decides whether Section 4(f) applies to a resource, reviews assessments of each alternative's impacts to 4(f) properties, and determines whether the law allows the selection of a particular alternative after consulting with the Department of Interior.
For more information: see http://www.environment.fhwa.dot.gov/environment/guidebook/vol2/4fpolicy.asp