Section 4(f) Properties

OTHER CONSIDERATIONS

Determination of Section 4(f) applicability is sometimes required for properties that do not fit neatly into the definition of publicly owned public parks, recreation areas, or refuges. You will find these others grouped in a category called Other Considerations.

This list of other considerations is not all-inclusive, but is meant to address some of the more commonly encountered situations. It is important to remember that the basic criteria for Section 4(f) eligibility also apply to these other considerations, namely that they must be significant publicly owned public properties.

This section provides information on determining the Section 4(f) applicability for following types of properties:

Wildlife Management Areas

Wildlife management areas may serve the same functions as wildlife refuges—namely, the protection and sanctuary for wildlife. If the primary purpose of a publically owned management area is that of a refuge, it is protected by Section 4(f) even though it may not be called a refuge.

Wildlife management areas may be identified by a variety of names, including wildlife reserve, preserve, or sanctuary, or waterfowl production area. As previously noted, Section 4(f) status is determined by the criteria that define it, not by its name. So regardless of its name, a wildlife management area is protected if its primary purpose is that of a refuge.

In some cases, laws may differentiate between refuges and management areas, especially at the state level. So be careful when evaluating these property types. In cases where local, state or federal laws do not make a clear distinction between refuges and wildlife management areas, an examination of the property, the enabling legislation, any management plans that exist, and coordination with the officials with jurisdiction are necessary to determine its primary purpose.

In the case of both formally designated refuges and wildlife management areas that function as refuges, other types of recreational activities are often permitted when they do not conflict with species conservation, such as hiking, wildlife viewing, and camping. Other activities, such as educational programs, hunting, and fishing, may also be allowed when the activity is consistent with broader species management goals.

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School Playgrounds

While the primary purpose of publicly owned school playgrounds is generally for structured physical education classes and recreation for the students, these properties may also serve significant public recreational purposes and therefore be subject to Section 4(f) requirements. If the playground is open to the general public (during non-school hours and not just to students of the school) for organized recreational purposes such as ballgames and other sporting events, it may be considered open to the public. Publicly owned school playgrounds, running tracks, ball fields, etc. also provide substantial walk-on recreational opportunities for the surrounding community that may qualify as Section 4(f) properties. The project sponsor must coordinate with the officials with jurisdiction in order to assess whether the property should be considered under Section 4(f). In the case of schools, there may be several parties with jurisdiction such as the school principal, local board of education, and municipal park authority.

A public school playground that serves only school activities and functions is not subject to Section 4(f) requirements (unless it is a historic site). Playgrounds associated with private schools are not protected under Section 4(f) (unless it is a historic site).

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Fairgrounds

Publicly owned fairgrounds that function primarily for commercial purposes by hosting state or county fairs, horse races, or other commercial ventures are not considered Section 4(f) properties. When fairgrounds are open to the public and function primarily for public recreation other than an annual fair, Section 4(f) applies to those portions of the land determined significant for park or recreational purposes (see multiple use discussion below). In either case, a fairground may also qualify as a historic property which would require consideration under Section 4(f).

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Public Multiple Use Land Holdings

It is not uncommon for lands such as state and national forests, Bureau of Land Management lands, and the US Army Corps of Engineers water impoundment projects to have multiple designated uses, including municipal reservoirs, timber management, mining, or grazing, as well as recreation or historic preservation. These types of properties are referred to as public multiple use land holdings or multi-use properties.

An example of a multi-use property is a state forest where most of the property is managed for timber production with smaller portion set aside as a campground and another portion of the property is on or eligible for the NRHP. When evaluating such properties, keep in mind that the entire property is not eligible for protection under Section 4(f); only those portions designated as a recreation area, refuge or historic site are eligible. An examination of the management plan, if one exists, and coordination with the officials with jurisdiction will be necessary to determine if Section 4(f) should apply to the resource. When a management plan doesn’t exist, or is out-of-date, the FHWA should examine how the property is functioning and being managed to determine Section 4(f) applicability.

illustration depicting a publicy-owned, multiple use land holding

Alternate View

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Wild and Scenic Rivers

The National Wild and Scenic Rivers Act (WSRA) identifies those rivers in the United States that are designated as part of the Wild and Scenic Rivers System. A Wild and Scenic River (WSR) is defined as "a river and the adjacent area within the boundaries of a component of the WSR." WSRs are managed by four different Federal agencies: the Forest Service, the National Park Service, the Fish and Wildlife Service, and the Bureau of Land Management. Within the WSR system there are wild, scenic, and recreational designations. A single river can be classified as having separate, or combined, wild, scenic and recreation areas along the entire river.

The designation of a river under the WSRA does not in itself invoke Section 4(f) in the absence of significant Section 4(f) attributes and qualities. Publicly owned public parks, recreation areas, refuges, and historic sites within a WSR corridor are subject to Section 4(f). Lands in WSR corridors managed for multiple uses may or may not be subject to Section 4(f) depending on the manner in which they are administered by the managing agency. Close examination of the management plan is required prior to any use of these lands for transportation purposes. Section 4(f) would apply to those portions of the land specifically designated in a management plan for recreation or other Section 4(f) uses. Where the management plan does not identify specific uses or where there is no plan, FHWA must consult further with the river-administering agency to make a Section 4(f) determination.

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Bodies of Water

Lakes are sometimes subject to multiple, even conflicting, activities and do not readily fit into one category or another. Section 4(f) would only apply to those portions of publicly owned lakes and/or adjacent publicly owned lands that function primarily for park, recreation, or refuge purposes. Section 4(f) does not apply to areas which function primarily for other purposes or where recreational activities occur on incidental, secondary, occasional or dispersed basis.

In general, rivers are not subject to the requirements of Section 4(f). Those portions of publicly owned rivers, which are designated as recreational trails are subject to the requirements of Section 4(f). Section 4(f) also applies to lakes and rivers or portions thereof which are contained within the boundaries of parks, recreation areas, refuges, and historic sites to which Section 4(f) otherwise applies.

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Planned Facilities

Section 4(f) applies to a planned facility when a public entity owns the property and has formally designated and determined it to be significant for park, recreation area, or wildlife and waterfowl refuge purposes. Evidence of formal designation is the inclusion of the publicly owned land, and its function as a Section 4(f) property, into a City or County Master Plan. A mere expression of interest or desire is not sufficient and the property must be currently publicly owned. When privately owned lands of these types are formally designated into a Master Plan for future development, Section 4(f) is not applicable.

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Bikeways

Section 4(f) applies to publicly owned, shared use or bike paths (or portions thereof) designated or functioning primarily for recreation, unless the official(s) with jurisdiction determines that it is not significant for such purpose. If the publicly owned shared use or bike path is primarily used for transportation and is an integral part of the local transportation system, the requirements of Section 4(f) do not apply since it is not a recreational area. In any case, whether Section 4(f) applies or not, it is FHWA’s policy that every reasonable effort should be made to maintain the continuity of existing and designated paths.

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Trails

National Scenic Trails (other than the Continental Divide National Scenic Trail, which pursuant to Public Law 95-625 is exempt from Section 4(f)) and National Recreation Trails that are on publicly owned recreation land are subject to Section 4(f), provided the trail physically exists on the ground thereby enabling active recreational use. Additionally, Section 4(f) applies to publicly owned, shared use paths or trails (or portions thereof) designated or functioning primarily for recreation, unless the official(s) with jurisdiction determines that it is not significant for such purpose.

If a publicly owned shared use path or trail is primarily used for transportation and is an integral part of the local transportation system, the requirements of Section 4(f) do not apply since it is not a recreational area.

If the publicly owned path or trail is simply described as occupying the right-of-way of the highway and is not limited to any specific location within the right-of-way, a Section 4(f) use of land would not occur provided that adjustments or changes in the alignment of the highway or the trail would not substantially impair the continuity of the path or trail. 

Section 4(f) does not apply to trails on privately owned lands unless there is a public easement A public easement includes any interest in land that is not possessory and that may be owned by another person, is reserved by the department or granted to the state for use by or the benefit of the public, including an access easement, survey easement, and utility easement. allowing the public to use the trail and the easement can be interpreted as public ownership for Section 4(f) purposes.

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Scenic Byways

The designation of a road as a scenic byway is not intended to create a park or recreation area within the meaning of Section 4(f). The improvement (reconstruction, rehabilitation, or relocation) of a publicly-owned scenic byway does not trigger Section 4(f) unless the improvement requires the use of land from a Section 4(f) property.