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Section 4(f) Policy Paper

Section 4(f) Policy Paper

Victor M. Mendez
Federal Highway Administration
July 20, 2012

[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Notices]
[Pages 42802-42831]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17461]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2011-0125]

Section 4(f) Policy Paper

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of availability; response to comments.

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SUMMARY: This document provides notice of the availability of the final
Section 4(f) Policy Paper that will provide guidance on the procedures
FHWA will follow when approving the use of land from publicly owned
public parks, recreation areas, wildlife and waterfowl refuges, and
public or private historic sites for Federal highway projects.

DATES: Effective Date: July 20, 2012.

FOR FURTHER INFORMATION CONTACT: Ms. MaryAnn Naber, FHWA Office of
Planning, Environment, and Realty, (202) 366-2060, or via email at
MaryAnn.Naber@dot.gov. For legal questions, please contact Ms. Diane
Mobley, Attorney Advisor, FHWA Office of the Chief Counsel, (202) 366-
1366, or via email at Diane.Mobley@dot.gov. Business hours for FHWA are
from 8 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

This document may be viewed online through the Federal eRulemaking
portal at: http://www.regulations.gov under docket ID FHWA-2011-0125.
Electronic submission and retrieval help and guidelines are available
on the Web site. It is available 24 hours each day, 366 days this year.
Please follow the instructions. It is also available on FHWA's Web site
at: http://www.fhwa.dot.gov. In addition, a hard copy of the final
Section 4(f) Policy Paper may be viewed and copied at the U.S.
Department of Transportation, Dockets Management Facility, Room W12-
140, 1200 New Jersey Avenue SE., Washington, DC 20590.

Background

Section 4(f) concerns the use of land from publicly owned parks,
recreation areas, wildlife and waterfowl refuges, and public or private
historic sites for transportation projects funded or approved by
agencies of the U.S. Department of Transportation. Although these
requirements are now codified at 23 U.S.C. 138 and 49 U.S.C. 303, the
subject matter remains commonly referred to as ``Section 4(f)'' because
the requirements originated in Section 4(f) of the Department of
Transportation Act of 1966 (Pub. L. 89-670, 80 Stat. 931). The FHWA's
Section 4(f) regulations, entitled ``Parks, Recreation Areas, Wildlife
and Waterfowl Refuges, and Historic Sites,'' were promulgated in 2008
and are codified at 23 CFR Part 774. The Section 4(f) Policy Paper
provides guidance on the procedures that FHWA will follow when
approving the use of land from publicly owned public parks, recreation
areas, wildlife and waterfowl refuges, and public or private historic
sites for Federal highway projects.
This Section 4(f) Policy Paper replaces the previous Section 4(f)
Policy Paper that FHWA issued in 2005. Later in 2005, Congress amended
Section 4(f) in Section 6009 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
(Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144). This version of the
Section 4(f) Policy Paper incorporates the changes that were made in
Section 6009 of SAFETEA-LU and the 2008 regulations. The Section 4(f)
Policy Paper consists of two parts: Part I provides an overview and
background information, a chronological description of the analysis
process that FHWA follows to comply with Section 4(f) for a typical
project, and a discussion of recommended documentation practices in
various situations. Part II consists of frequently encountered
questions and answers.

Comments on the Draft Section 4(f) Policy Paper

On January 4, 2012, FHWA published a notice in the Federal Register
at 77 FR 321 announcing the availability of the draft Section 4(f)
Policy Paper with a request for comments. The FHWA carefully considered
all comments received. Comments were submitted by 12 State DOTs, 3
Federal agencies, 2 Indian tribes, 1 transit agency, 4 trade
associations/interest groups, and 9 individuals. The comments are
available for public review in the docket referenced above.

[[Page 42803]]

Overall, the commenters indicate that the Section 4(f) Policy Paper
will be helpful. The majority of changes made in response to the
comments were clarifications to the language in the draft rather than
substantive changes to FHWA's 4(f) policies. Several commenters
suggested policy changes that would conflict with FHWA's statutory or
regulatory obligations; those comments were not adopted. For example,
one commenter requested that the final decisionmaking authority be
vested in the officials with jurisdiction over Section 4(f) property
rather than FHWA. Many commenters offered formatting, grammatical, or
editorial suggestions; those types of comments were adopted when deemed
appropriate.
One complex topic on which a number of comments were received
concerned properties with some characteristics that may be similar to a
wildlife and waterfowl refuge, such as a private property with a
conservation-type easement, and how FHWA determines if such properties
are considered to be wildlife and waterfowl refuges for purposes of
Section 4(f). The FHWA makes these determinations on an individual,
property-by-property basis following the guidelines described in Q&As
1A, 1B, 1C, 1D, and 1E. The FHWA clarified those Q&As in the final
version but did not adopt commenter recommendations to make categorical
decisions, based for example on various Federal grant programs, or to
ignore whether a property with a conservation easement is or is not
open to the public.
Several commenters questioned whether various aspects of the Policy
Paper are in the nature of recommendations or are actual requirements.
The final Section 4(f) Policy Paper does not impose requirements beyond
what is currently required by statute or regulation and includes
references to the statute or regulation providing the basis for all
requirements mentioned in the Policy Paper. One commenter asked that a
formal dispute resolution process be created and a few other commenters
asked for a mandate that various findings and disagreements must be
published in an Environmental Impact Statement. Although these
suggestions were not adopted, additional detail about recommended
practices was added to the discussion in Section 4.0, Documentation.
There were also requests for various visual aides such as matrices or
tables. As a result, an overview flowchart of the Section 4(f) process
was created and added as an appendix. Finally, internal U.S. Department
of the Interior (DOI) instructions for distribution that had been
included as an appendix in the draft Policy Paper were revised by the
DOI after publication of the draft Policy Paper. The final Policy Paper
includes a link to the relevant area of DOI's Web site in lieu of
including the instructions as an appendix.
The main changes from the draft to the final version in Part I--
Section 4(f) Overview are described in this paragraph. The headings for
Section 1.2 were updated and Section 1.2.2, Role of Officials with
Jurisdiction, now notes that concurrences should be in writing, and
that the regulations require only a ``lack of objection'' rather than
``concurrence'' prior to applying the exception for archeological sites
of minimal value for preservation in place. Section 1.3, When does
Section 4(f) apply?, now notes that an obligation of construction funds
is an ``approval'' for purposes of Section 4(f), as well as noting that
there are regulatory applicability rules and exceptions. In Section
3.2, Assessing use of Section 4(f) Properties, guidance was added about
the meaning of ``substantially impaired'' (also in Q&A 7A), as well as
guidance on determining the boundaries of a protected property. Section
3.3.2, Programmatic Section 4(f) Evaluations, now notes that
programmatic evaluations can be national, regional, or local. Within
Section 3.3.3.1, Feasible and Prudent Avoidance Alternatives, language
was added emphasizing the need to try and avoid using Section 4(f)
property when it is feasible and prudent to do so. Section 3.3.3.2.,
Least Overall Harm, now notes, consistent with the preamble to the
Section 4(f) regulations, that when two or more alternatives are
substantially equal, FHWA can approve any of those alternatives. The
subject of documentation was moved to its own Section, 4.0, and
additional guidance was added.
The main changes from the draft to the final version in Part II--
Questions and Answers Regarding Section 4(F) Applicability and
Compliance are described in this paragraph. Q&A 1E now includes,
consistent with Q&A 17C, the possibility that a site purchased as
mitigation for a transportation project could be considered a refuge
for purposes of Section 4(f) if the mitigation site meets all of the
applicable criteria for Section 4(f) status as a refuge. The Q&A 2A now
explains, consistent with prior FHWA Section 4(f) Policy Papers, the
circumstances where FHWA may apply Section 4(f) to a historic site that
is not on or eligible for the National Register of Historic Places
(NR). The Q&A 2B, concerning phased Section 106 consultation processes,
was moved from its former location at Q&A 10B, and explanation added
about the level of effort that should be undertaken to identify Section
4(f) properties. The Q&A 6 now notes that Traditional Cultural
Properties may be eligible for the NR under other criteria besides just
archeology. It was determined that former Q&A 13D concerning the
phasing-in of the de minimis impact legislation was no longer necessary
due to the passage of time and it was removed as a result. In Q&A 24
examples were added of the types of government action that could
indicate the reservation of a transportation corridor within a new
park, recreation area or refuge. Finally, a new Q&A 30 was added to
explain how FHWA complies with Section 4(f) in emergencies.

Authority: 23 U.S.C. 101, 109, 138 and 139; 23 CFR 1.32 and 774;
49 U.S.C. 303; and, 49 CFR 1.48(b)).

Issued on: July 11, 2012.
Victor M. Mendez,
Administrator.
Final Section 4(f) Policy Paper: The text of the final Section 4(f)
Policy Paper is as follows:

FHWA Section 4(f) Policy Paper

Part I--Section 4(f) Overview

1.0 Introduction
This Section 4(f) Policy Paper supplements the Federal Highway
Administration's (FHWA) regulations governing the use of land from
publicly owned parks, recreation areas, wildlife and waterfowl refuges,
and public or private historic sites for Federal highway projects.
Although these requirements are now codified at 23 U.S.C. 138 and 49
U.S.C. 303, this subject matter remains commonly referred to as Section
4(f) because the requirements originated in Section 4(f) of the
Department of Transportation Act of 1966 (Pub. L. 89-670, 80 Stat.
931). The Section 4(f) Policy Paper replaces the FHWA's 2005 edition of
the document. The FHWA's Section 4(f) regulations, entitled Parks,
Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites,
are codified at 23 CFR Part 774. Many of the terms used in this Section
4(f) Policy Paper are defined in the regulation at 23 CFR 774.17.
1.1 Purpose
This Section 4(f) Policy Paper was written primarily to aid FHWA
personnel with administering Section 4(f) in a consistent manner. In
situations where a State has assumed the FHWA responsibility for
Section 4(f)

[[Page 42804]]

compliance, this guidance is intended to help the State fulfill its
responsibilities. Such situations may arise when Section 4(f)
responsibilities are assigned to the State in accordance with 23 U.S.C.
325, 326, 327, or a similar applicable law. Unless otherwise noted,
references to ``FHWA'' in this document include a State department of
transportation (State DOT) acting in FHWA's capacity pursuant to an
assumption of FHWA's responsibilities under such laws.
This guidance is also intended to help State DOTs and other
applicants for grants-in-aid for highway projects to plan projects that
minimize harm to Section 4(f) properties. Experience demonstrates that
when Section 4(f) is given consideration early in project planning, the
risk of a project becoming unnecessarily delayed due to Section 4(f)
processing is minimized. Ideally, applicants should strive to make the
preservation of Section 4(f) properties, along with other environmental
concerns, part of their long and short range transportation planning
processes. Information and tools to help State DOTs, metropolitan
planning organizations and other applicants accomplish this goal are
available on FHWA's Planning and Environmental Linkages Web site
located at: http://environment.fhwa.dot.gov/integ/index.asp.
This Section 4(f) Policy Paper is based on and is intended to
reflect: the statute itself, the legislative history of the statute;
the requirements of the Section 4(f) regulations; relevant court
decisions; and FHWA's experience with implementing the statute over
four decades, including interactions with the public and with agencies
having jurisdiction over Section 4(f) properties. The information
presented is not regulatory and does not create any right of action
that may be enforced by a private citizen in a court of law. This
Section 4(f) Policy Paper sets forth the official policy of FHWA on the
applicability of Section 4(f) to various types of land and resources,
and other Section 4(f) related issues. While the other United States
Department of Transportation (U.S. DOT) agencies may choose to rely
upon some or all of this Section 4(f) Policy Paper as a reference, it
was not written as guidance for any U.S. DOT agency other than FHWA.
This guidance addresses the majority of situations related to
Section 4(f) that may be encountered in the development of a
transportation project. If a novel situation or project arises which
does not completely fit the situations or parameters described in this
Section 4(f) Policy Paper, the relevant FHWA Division Office,\1\ the
FHWA Headquarters Office of Project Development and Environmental
Review, the Resource Center Environment Technical Service Team, and/or
the Office of Chief Counsel should be consulted as appropriate for
assistance. For additional information on Section 4(f) beyond that
which is contained in this Section 4(f) Policy Paper, readers should
refer to the FHWA Environmental Review Toolkit.\2\
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\1\ This may be a Federal Lands Highway Division Office if the
project is located on Federal lands.
\2\ http://www.environment.fhwa.dot.gov/index.asp.
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1.2 Agency Authority and Responsibilities
1.2.1 Role of U.S. DOT
The authority to administer Section 4(f) and make Section 4(f)
approvals resides with the Secretary of the U.S. DOT. The statute
designates the Secretaries of the Interior, Housing and Urban
Development, and Agriculture, as well as the States, for consultation
roles as appropriate. This means that the Secretary of Transportation
is responsible for soliciting and considering the comments of these
other entities, as well as the appropriate official(s) with
jurisdiction over the Section 4(f) property, as part of the
administration of Section 4(f). However, the ultimate decision maker is
the Secretary of Transportation. In a number of instances, the Section
4(f) regulations require the concurrence of various officials in
limited circumstances as discussed below.
The Secretary of Transportation has delegated the authority for
administering Section 4(f) to the FHWA Administrator in 49 CFR 1.48.
The authority has been re-delegated to the FHWA Division
Administrators, the Associate Administrator for Planning, Environment,
and Realty, and the Federal Lands Highway Associate Administrator by
FHWA Order M1100.1A, Chapter 5, Section 17e and Chapter 6, Section 7d.
Any approval of the use of Section 4(f) property, other than a use with
a de minimis impact or a use processed with an existing programmatic
Section 4(f) evaluation is subject to legal sufficiency review by the
Office of Chief Counsel.
1.2.2 Role of Officials With Jurisdiction
Consultation
The regulations define the entities and individuals who are
considered the officials with jurisdiction for various types of
property in 23 CFR 774.17. In the case of historic sites, the officials
with jurisdiction are the State Historic Preservation Officer (SHPO),
or, if the property is located on tribal land, the Tribal Historic
Preservation Officer (THPO).\3\ If the property is located on tribal
land but the relevant Indian tribe has not assumed the responsibilities
of the SHPO, then a representative designated by the tribe shall be
recognized as an official with jurisdiction in addition to the SHPO.
When the Advisory Council on Historic Preservation (ACHP) is involved
in consultation concerning a property under Section 106 of the National
Historic Preservation Act (NHPA) (16 U.S.C. 470), the ACHP is also an
official with jurisdiction over that resource for the purposes of
Section 4(f). When the Section 4(f) property is a National Historic
Landmark (NHL), the designated official of the National Park Service is
also an official with jurisdiction over that resource for the purposes
of Section 4(f). In the case of public parks, recreation areas, and
wildlife and waterfowl refuges, the officials with jurisdiction are the
officials of the agency or agencies that own or administer the property
in question and who are empowered to represent the agency on matters
related to the property.
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\3\ Tribal lands means all lands within the exterior boundaries
of any Indian reservation and all dependent Indian communities (16
U.S.C. 470w).
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Coordination
The regulations require coordination with the official(s) with
jurisdiction for the following situations prior to Section 4(f)
approval (recognizing that additional coordination may be required
under other statutes or regulations):
Prior to making approvals, (23 CFR 774.3(a));
Determining least overall harm, (23 CFR 774.3(c));
Applying certain programmatic Section 4(f) evaluations,
(23 CFR 774.5(c));
Applying Section 4(f) to properties that are subject to
Federal encumbrances, (23 CFR 774.5(d));
Applying Section 4(f) to archeological sites discovered
during construction, (23 CFR 774.9(e));
Determining if a property is significant, (23 CFR
774.11(c));
Determining application to multiple-use properties, (23
CFR 774.11(d));
Determining applicability of Section 4(f) to historic
sites, (23 CFR 774.11(e));
Determining constructive use, (23 CFR 774.15(d));

[[Page 42805]]

Determining if proximity impacts will be mitigated to
equivalent or better condition, (23 CFR 774.15(f)(6)); and
Evaluating the reasonableness of measures to minimize
harm, (23 CFR 774.3(a)(2) and 774.17).
Lack of Objection
The regulations require a finding that the official(s) with
jurisdiction have been consulted and ``have not objected'' in the
following situations:
When applying the exception for restoration,
rehabilitation, or maintenance of historic transportation facilities,
(23 CFR 774.13(a)); and
When applying the exception for archeological sites of
minimal value for preservation in place. (23 CFR 774.13(b)(2)).
Concurrence
The regulations require written concurrence of the official(s) with
jurisdiction in the following situations:
Finding there are no adverse effects prior to making de
minimis impact findings, (23 CFR 774.5(b));
Applying the exception for temporary occupancies, (23 CFR
774.13(d)); and
Applying the exception for transportation enhancement
activities and mitigation activities, (23 CFR 774.13(g)).
1.3 When does section 4(f) apply?
The statute itself specifies that Section 4(f) applies when a U.S.
DOT agency approves a transportation program or project that uses
Section 4(f) property. The FHWA does not currently approve any
transportation programs; thus, Section 4(f) is limited to project
approvals. In addition, for the statute to apply to a proposed project
there are four conditions that must all be true:
(1) The project must require an approval \4\ from FHWA in order to
proceed;
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\4\ Examples include the obligation of construction funds and
the approval of access modifications on the Interstate System.
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(2) The project must be a transportation project;\5\
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\5\ Most projects funded by FHWA are transportation projects;
however, in a few instances certain projects eligible for funding,
such as the installation of safety enhancement barriers on a bridge,
have been determined not to have a transportation purpose and
therefore do not require a Section 4(f) approval.
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(3) The project must require the use of land from a property
protected by Section 4(f) (See 23 U.S.C. 138(a) and 49 U.S.C. 303(a));
and
(4) None of the regulatory applicability rules or exceptions
applies (See 23 CFR 774.11 and 13).
Examples of the types of proposed situations where Section 4(f)
would not apply include, but are not limited to:
(1) A transportation project being constructed solely using State
or local funds and not requiring FHWA approval.
(2) A project intended to address a purpose that is unrelated to
the movement of people, goods, and services from one place to another
(i.e., a purpose that is not a transportation purpose).
(3) A project to be located adjacent to a Section 4(f) property,
causing only minor proximity impacts to the Section 4(f) property
(i.e., no constructive use).
(4) A project that will use land from a privately owned park,
recreation area, or refuge.
Additional information about these examples and many other examples
of situations where Section 4(f) approval is or is not required is
located in the questions and answers provided in Part II of this
Section 4(f) Policy Paper. In situations where FHWA has determined that
Section 4(f) does not apply, the project file should contain sufficient
information to demonstrate the basis for that determination (See
Section 4.0, Documentation).
2.0 Background
The FHWA originally issued the Section 4(f) Policy Paper in 1985,
with minor amendments in 1989. A 2005 edition provided comprehensive
new guidance on when and how to apply the provisions of Section 4(f),
including how to choose among alternatives that all would use Section
4(f) property. Later in 2005, Congress substantially amended Section
4(f) in the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU), (Pub. L. 109-59 (Aug. 10,
2005), 119 Stat. 1144). SAFETEA-LU directed the U.S. DOT to revise its
Section 4(f) regulations. In response, FHWA and the Federal Transit
Administration consulted with interested agencies and environmental
organizations before drafting a notice of proposed rulemaking. The
notice of proposed rulemaking was published for comment in the Federal
Register (71 FR 42611, July 27, 2006).
Following careful consideration of the comments submitted, the new
Section 4(f) regulations were issued in March 2008 (73 FR 13368, March
12, 2008). A minor technical correction followed shortly thereafter (73
FR 31609, June 3, 2008). The new Section 4(f) regulations clarified the
feasible and prudent standard, implemented a new method of compliance
for de minimis impact situations, and updated many other aspects of the
regulations, including the adoption of regulatory standards based upon
the 2005 edition of the Section 4(f) Policy Paper for choosing among
alternatives that all use Section 4(f) property. This 2012 edition of
the Section 4(f) Policy Paper includes guidance for all of the changes
promulgated in the Section 4(f) regulations in 2008.
If any apparent discrepancy between this Section 4(f) Policy Paper
and the Section 4(f) regulation should arise, the regulation takes
precedence. The previous editions of this Section 4(f) Policy Paper are
no longer in effect.
3.0 Analysis Process
3.1 Identification of Section 4(f) Properties
Section 4(f) requires consideration of:
Parks and recreational areas of national, state, or local
significance that are both publicly owned and open to the public
Publicly owned wildlife and waterfowl refuges of national,
state, or local significance that are open to the public to the extent
that public access does not interfere with the primary purpose of the
refuge \6\
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\6\ Since the primary purpose of a refuge may make it necessary
for the resource manager to limit public access for the protection
of wildlife or waterfowl, FHWA's policy is that these facilities are
not required to always be open to the public. Some areas of a refuge
may be closed to public access at all times or during parts of the
year to accommodate preservation objectives.
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Historic sites of national, state, or local significance
in public or private ownership regardless of whether they are open to
the public (See 23 U.S.C. 138(a) and 49 U.S.C. 303(a))
When private institutions, organizations, or individuals own parks,
recreational areas or wildlife and waterfowl refuges, Section 4(f) does
not apply, even if such areas are open to the public. However, if a
governmental body has a permanent proprietary interest in the land
(such as a permanent easement, or in some circumstances, a long-term
lease), FHWA will determine on a case-by-case basis whether the
particular property should be considered publicly owned and, thus, if
Section 4(f) applies (See Questions 1B and 1C). Section 4(f) also
applies to all historic sites that are listed, or eligible for
inclusion, in the National Register of Historic Places (NR) at the
local, state, or national level of significance regardless of whether
or not the historic site is publicly owned or open to the public.
A publicly owned park, recreational area or wildlife or waterfowl
refuge must be a significant resource for

[[Page 42806]]

Section 4(f) to apply (See 23 CFR 774.11(c) and Question 1A). Resources
which meet the definitions above are presumed to be significant unless
the official with jurisdiction over the site concludes that the entire
site is not significant. The FHWA will make an independent evaluation
to assure that the official's finding of significance or non-
significance is reasonable. In situations where FHWA's determination
contradicts and overrides that of the official with jurisdiction, the
reason for FHWA's determination should be documented in the project
file and discussed in the environmental documentation for the proposed
action.
Section 4(f) properties should be identified as early as
practicable in the planning and project development process in order
that complete avoidance of the protected resources can be given full
and fair consideration (See 23 CFR 774.9(a)). Historic sites are
normally identified during the process required under Section 106 of
the NHPA and its implementing regulations (See 36 CFR Part 800).
Accordingly, the Section 106 process should be initiated and resources
listed or eligible for listing in the NR identified early enough in
project planning or development to determine whether Section 4(f)
applies and for avoidance alternatives to be developed and assessed
(See 23 CFR 774.11(e)).
3.2 Assessing Use of Section 4(f) Properties
Once Section 4(f) properties have been identified in the study
area, it is necessary to determine if any of them would be used by an
alternative or alternatives being carried forward for detailed study.
Use in the Section 4(f) context is defined in 23 CFR 774.17
(Definitions) and the term has very specific meaning (see also Question
7 in this Section 4(f) Policy Paper). Any potential use of Section 4(f)
property should always be described in related documentation consistent
with this definition, as well as with the language from 23 CFR
774.13(d) (Exceptions- temporary occupancy) and 23 CFR 774. 15
(Constructive Use Determinations), as applicable. It is not recommended
to substitute similar terminology such as affected, impacted, or
encroached upon in describing when a use occurs, as this may cause
confusion or misunderstanding by the reader.
The most common form of use is when land is permanently
incorporated into a transportation facility. This occurs when land from
a Section 4(f) property is either purchased outright as transportation
right-of-way or when the applicant for Federal-aid funds has acquired a
property interest that allows permanent access onto the property such
as a permanent easement for maintenance or other transportation-related
purpose.
The second form of use is commonly referred to as temporary
occupancy and results when Section 4(f) property, in whole or in part,
is required for project construction-related activities. The property
is not permanently incorporated into a transportation facility but the
activity is considered to be adverse in terms of the preservation
purpose of Section 4(f). Section 23 CFR 774.13(d) provides the
conditions under which ``temporary occupancies of land* * *are so
minimal as to not constitute a use within the meaning of Section
4(f).'' If all of the conditions in Section 774.13(d) are met, the
temporary occupancy does not constitute a use. If one or more of the
conditions for the exception cannot be met, then the Section 4(f)
property is considered used by the project even though the duration of
onsite activities is temporary. Written agreement by the official(s)
with jurisdiction over the property with respect to all the conditions
is necessary and should be retained in the project file. Assurances
that documentation will eventually be obtained via subsequent
negotiations are not acceptable. Also, it is typical that the activity
in question will be detailed in project plans as an integral and
necessary feature of the project.
The third and final type of use is called constructive use. A
constructive use involves no actual physical use of the Section 4(f)
property via permanent incorporation of land or a temporary occupancy
of land into a transportation facility. A constructive use occurs when
the proximity impacts of a proposed project adjacent to, or nearby, a
Section 4(f) property result in substantial impairment to the
property's activities, features, or attributes that qualify the
property for protection under Section 4(f). As a general matter this
means that the value of the resource, in terms of its Section 4(f)
purpose and significance, will be meaningfully reduced or lost. The
types of impacts that may qualify as constructive use, such as
increased noise levels that would substantially interfere with the use
of a noise sensitive feature such as a campground or outdoor
amphitheater, are addressed in 23 CFR 774.15. A project's proximity to
a Section 4(f) property is not in itself an impact that results in
constructive use. Also, the assessment for constructive use should be
based upon the impact that is directly attributable to the project
under review, not the overall combined impacts to a Section 4(f)
property from multiple sources over time. Since constructive use is
subjective, FHWA's delegation of Section 4(f) authority to the FHWA
Division Offices requires consultation with the Headquarters Office of
Project Development and Environmental Review prior to finalizing any
finding of constructive use.
In making any finding of use involving Section 4(f) properties, it
is necessary to have up to date right-of-way information and clearly
defined property boundaries for the Section 4(f) properties. For
publicly owned parks, recreation areas, and refuges, the boundary of
the Section 4(f) resource is generally determined by the property
ownership boundary. Up-to-date right-of-way records are needed to
ensure that ownership boundaries are accurately documented. For
historic properties, the boundary of the Section 4(f) resource is
generally the NR boundary. If the historic property boundary of an
eligible or listed site has not been previously established via Section
106 consultation, care should be taken in evaluating the site with
respect to eligibility criteria. Depending upon its contributing
characteristics, the actual legal boundary of the property may not
ultimately coincide with the NR boundary. Since preliminary engineering
level of detail (not final design) is customary during environmental
analyses, it may be necessary to conduct more detailed preliminary
design in some portions of the study area to finalize determinations of
use.
Late discovery and/or late designations of Section 4(f) properties
subsequent to completion of environmental studies may also occur. Each
situation must be assessed to determine if the change in Section 4(f)
status results in a previously unidentified need for a Section 4(f)
approval pursuant to 23 CFR 774.13(c) (See Question 26). The
determination should be considered and documented, as appropriate, in
any re-evaluation of the project.
3.3 Approval Options
When FHWA determines that a project as proposed may use Section
4(f) property, there are three methods available for FHWA to approve
the use:
(1) Preparing a de minimis impact determination;
(2) Applying a programmatic Section 4(f) evaluation; or
(3) Preparing an individual Section 4(f) evaluation.
While the applicant will participate in gathering and presenting
the documentation necessary for FHWA to

[[Page 42807]]

make a Section 4(f) approval, the actual approval action is the FHWA's
responsibility. The three approval options are set out in 23 CFR 774.3
and are discussed below.
3.3.1 Determination of a De Minimis Impact to Section 4(f) Property
A de minimis impact is one that, after taking into account any
measures to minimize harm (such as avoidance, minimization, mitigation
or enhancement measures), results in either:
(1) A Section 106 finding of no adverse effect or no historic
properties affected on a historic property; or
(2) A determination that the project would not adversely affect the
activities, features, or attributes qualifying a park, recreation area,
or refuge for protection under Section 4(f).
In other words, a de minimis impact determination is made for the
net impact on the Section 4(f) property. The final project NEPA
decision document must include sufficient supporting documentation for
any measures to minimize harm that were applied to the project by FHWA
in order to make the de minimis impact determination (See 23 CFR
774.7(b)). A use of Section 4(f) property having a de minimis impact
can be approved by FHWA without the need to develop and evaluate
alternatives that would avoid using the Section 4(f) property. A de
minimis impact determination may be made for a permanent incorporation
or temporary occupancy of Section 4(f) property.
A de minimis impact determination requires agency coordination and
public involvement as specified in 23 CFR 774.5(b). The regulation has
different requirements depending upon the type of Section 4(f) property
that would be used. For historic sites, the consulting parties
identified in accordance with 36 CFR Part 800 \7\ must be consulted.
The official(s) with jurisdiction must be informed of the intent to
make a de minimis impact determination and must concur in a finding of
no adverse effect or no historic properties affected in accordance with
36 CFR Part 800. Compliance with 36 CFR Part 800 satisfies the public
involvement and agency coordination requirement for de minimis impact
findings for historic sites.
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\7\ Regulations implementing Section 106 of the NHPA.
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For parks, recreation areas, or wildlife and waterfowl refuges, the
official(s) with jurisdiction over the property must be informed of the
intent to make a de minimis impact determination, after which an
opportunity for public review and comment must be provided. After
considering any comments received from the public, if the official(s)
with jurisdiction concurs in writing that the project will not
adversely affect the activities, features, or attributes that make the
property eligible for Section 4(f) protection, then FHWA may finalize
the de minimis impact determination. The public notice and opportunity
for comment as well as the concurrence for a de minimis impact
determination may be combined with similar actions undertaken as part
of the NEPA process. If a proposed action does not normally require
public involvement, such as for certain minor projects covered by a
categorical exclusion, an opportunity for the public to review and
comment on the proposed de minimis impact determination must be
provided. The opportunity for public input may be part of a public
meeting or another form of public involvement. The final determination
should be made by the FHWA Division Administrator (or in the case of
Federal Lands, the Division Engineer) and all supportive documentation
retained as part of the project file (See Section 4.0, Documentation).
A de minimis impact determination (see Part II, Questions 11-12) is
a finding. It is not an evaluation of alternatives and no avoidance or
feasible and prudent avoidance alternative analysis is required. The
definition of all possible planning in 23 CFR 774.17 explains that a de
minimis impact determination does not require the traditional second
step of including all possible planning to minimize harm because
avoidance, minimization, mitigation, or enhancement measures are
included as part of the determination.
A de minimis impact determination must be supported with sufficient
information included in the project file to demonstrate that the de
minimis impact and coordination criteria are satisfied (23 CFR
774.7(b)). The approval of a de minimis impact should be documented in
accordance with the documentation requirements in 23 CFR 774.7(f).
These requirements may be satisfied by including the approval in the
NEPA documentation--i.e., an Environmental Assessment (EA),
Environmental Impact Statement (EIS), or Categorical Exclusion (CE)
determination, Record of Decision (ROD), or Finding of No Significant
Impact (FONSI),--or in an individual Section 4(f) evaluation when one
is prepared for a project. When an individual Section 4(f) evaluation
is required for a project in which one or more de minimis impact
determinations will also be made, it is recommended that the individual
Section 4(f) evaluation include the relevant documentation to support
the proposed de minimis impact determination(s).
In situations where FHWA concludes in the individual Section 4(f)
evaluation that there is no feasible and prudent avoidance alternative
and there are two or more alternatives that use Section 4(f) property,
a least overall harm analysis will be necessary pursuant to 23 CFR
774.3(c) (See Section 3.3.3.2, Alternative with Least Overall Harm). In
such instances, while the de minimis impact will be considered in that
analysis, the de minimis impact is unlikely to be a significant
differentiating factor between alternatives because the net harm
resulting from the de minimis impact is negligible. The determination
of least overall harm will depend upon a comparison of the factors
listed in the regulation, 23 CFR 774.3(c)(1).
3.3.2 Programmatic Section 4(f) Evaluations
Programmatic Section 4(f) evaluations are a time-saving procedural
option for preparing individual Section 4(f) evaluations (discussed in
Section 3.3.3) for certain minor uses of Section 4(f) property.
Programmatic Section 4(f) evaluations are developed by the FHWA based
on experience with many projects that have a common fact pattern from a
Section 4(f) perspective. Through applying a specific set of criteria,
based upon common experience that includes project type, degree of use
and impact, the evaluation of avoidance alternatives is standardized
and simplified. An approved programmatic Section 4(f) evaluation may be
relied upon to cover a particular project only if the specific
conditions in that programmatic evaluation are met. Programmatic
evaluations can be nationwide, region-wide, or statewide. The
development of any programmatic evaluation, including region-wide and
statewide, must be coordinated with the FHWA Office of Project
Development and Environmental Review and the FHWA Office of Chief
Counsel.
As of the date of publication of this Section 4(f) Policy Paper,
the FHWA has issued five nationwide programmatic Section 4(f)
evaluations: \8\
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\8\ http://www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp.
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(1) Section 4(f) Statement and Determination for Independent
Bikeway or Walkway Construction Projects
(2) Programmatic Section 4(f) Evaluation and Approval for FHWA
Projects that Necessitate the Use of Historic Bridges

[[Page 42808]]

(3) Final Nationwide Section 4(f) Evaluation and Approval for
Federally-Aided Highway Projects with Minor Involvements with Historic
Sites
(4) Final Nationwide Section 4(f) Evaluation and Approval for
Federally-Aided Highway Projects with Minor Involvements with Public
Parks, Recreation Lands, Wildlife and Waterfowl Refuges
(5) Nationwide Programmatic Section 4(f) Evaluation and Approval
for Transportation Projects That Have a Net Benefit to a Section 4(f)
Property
Before being adopted, all of the nationwide programmatic Section
4(f) evaluations were published in draft form in the Federal Register
for public review and comment. They were also provided to appropriate
Federal agencies, including the Department of the Interior (U.S. DOI),
for review. Each programmatic Section 4(f) evaluation was reviewed by
FHWA's Office of Chief Counsel for legal sufficiency.
It is not necessary to coordinate project-specific applications of
approved programmatic Section 4(f) evaluations with the U.S. DOI unless
the U.S. DOI owns or has administrative oversight over the Section 4(f)
property involved (is an official with jurisdiction or has an oversight
role as described Questions 9D and 31). As specified in the applicable
programmatic Section 4(f) evaluation, it is still necessary to
coordinate with the official(s) with jurisdiction over such properties.
A legal sufficiency review of a project-specific application of an
approved programmatic Section 4(f) evaluation is not necessary. As
such, a primary benefit to using the prescribed step-by-step approach
contained in a programmatic evaluation is the reduction of time to
process a Section 4(f) approval.
Documentation required to apply a programmatic Section 4(f)
evaluation must support that the specific programmatic criteria have
been met (See 23 CFR 774.3(d)(1)). A separate Section 4(f) document is
not required but an indication in the NEPA documentation that Section
4(f) compliance was satisfied by the applicable programmatic evaluation
is required (See 23 CFR 774.7(f)). As specified in the programmatic
evaluations, the requirement to assess whether there is a feasible and
prudent avoidance alternative and all possible planning applies. The
necessary information supporting the applicability of the programmatic
evaluation will be retained in the project file (See Section 4.0,
Documentation).
3.3.3 Individual Project Section 4(f) Evaluations
An individual Section 4(f) evaluation must be completed when
approving a project that requires the use of Section 4(f) property if
the use, as described in Sections 3.1 and 3.2 above, results in a
greater than de minimis impact and a programmatic Section 4(f)
evaluation cannot be applied to the situation (23 CFR 774.3). The
individual Section 4(f) evaluation documents the evaluation of the
proposed use of Section 4(f) properties in the project area of all
alternatives. The individual Section 4(f) evaluation requires two
findings, which will be discussed in turn:
(1) That there is no feasible and prudent alternative that
completely avoids the use of Section 4(f) property; and
(2) That the project includes all possible planning to minimize
harm to the Section 4(f) property resulting from the transportation use
(See 23 CFR 774.3(a)(1) and (2)).
3.3.3.1 Feasible and Prudent Avoidance Alternatives
The intent of the statute, and the policy of FHWA, is to avoid and,
where avoidance is not feasible and prudent, minimize the use of
significant public parks, recreation areas, wildlife and waterfowl
refuges and historic sites by our projects. Unless the use of a Section
4(f) property is determined to have a de minimis impact, FHWA must
determine that no feasible and prudent avoidance alternative exists
before approving the use of such land (See 23 CFR 774.3). The Section
4(f) regulations refer to an alternative that would not require the use
of any Section 4(f) property as an avoidance alternative. Feasible and
prudent avoidance alternatives are those that avoid using any Section
4(f) property and do not cause other severe problems of a magnitude
that substantially outweigh the importance of protecting the Section
4(f) property (23 CFR 774.17). This section of the Section 4(f) Policy
Paper focuses on the identification, development, evaluation,
elimination and documentation of potential feasible and prudent
avoidance alternatives in a Section 4(f) evaluation document.
The first step in determining whether a feasible and prudent
avoidance alternative exists is to identify a reasonable range of
project alternatives including those that avoid using Section 4(f)
property. The avoidance alternatives will include the no-build. The
alternatives screening process performed during the scoping phase of
NEPA is a good starting point for developing potential section 4(f)
avoidance alternatives and/or design options.\9\ Any screening of
alternatives that may have occurred during the transportation planning
phase may be considered as well. It may be necessary, however, to look
for additional alternatives if the planning studies and the NEPA
process did not identify Section 4(f) properties and take Section 4(f)
requirements into account. If Section 4(f) avoidance alternatives were
eliminated during the earlier phases of project development for reasons
unrelated to Section 4(f) impacts or a failure to meet the project
purpose and need, they may need to be reconsidered in the Section 4(f)
process. In addition, it is often necessary to develop and analyze new
alternatives, or new variations of alternatives rejected for non-
Section 4(f) reasons during the earlier phases.
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\9\ In the Section 4(f) statute, the term alternative is used in
the context of an option which avoids using land from a Section 4(f)
property and is not limited to the context of the end-to-end
alternative as defined by the project applicant. This section of the
Section 4(f) Policy Paper uses the phrase ``avoidance alternatives
and/or design options'' in order to clarify that, depending upon the
project context, the potential alternatives that should be evaluated
to avoid Section 4(f) property may be end-to-end alternatives or may
be a change to only a portion of the end-to-end project.
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The no-action or no-build alternative is an avoidance alternative
and should be included in the analysis as such. In identifying other
avoidance alternatives, FHWA should consider the reasonable
alternatives that meet the purpose and need of the project. Potential
alternatives to avoid the use of Section 4(f) property may include one
or more of the following, depending on project context:
Location Alternatives--A location alternative refers to
the re-routing of the entire project along a different alignment.
Alternative Actions--An alternative action could be a
different mode of transportation, such as rail transit or bus service,
or some other action that does not involve construction such as the
implementation of transportation management systems or similar
measures.
Alignment Shifts--An alignment shift is the re-routing of
a portion of the project to a different alignment to avoid a specific
resource.
Design Changes--A design change is a modification of the
proposed design in a manner that would avoid impacts, such as reducing
the planned median width, building a retaining wall, or incorporating
design exceptions.
When considering alignment shifts and design changes, it is
important to

[[Page 42809]]

keep in mind the range of allowable configurations and design values
for roadway elements and different types of roads. These guidelines are
contained within the official state standards and/or the ``Green
Book,'' properly titled A Policy on the Geometric Design of Highways
and Streets and published by the American Association of State Highway
and Transportation Officials. The guidelines set out the generally
acceptable ranges of dimensions for roadway elements and typical
applications on different types of roadway facilities. These ranges of
values provide planners and designers the ability to develop projects
at an acceptable cost and level of performance (e.g. safety, traffic
flow, sustainability), while balancing the site-specific conditions,
constraints, and implications of design decisions. Where it may be
appropriate to select a value or dimension outside of the ranges that
are established in State and national guidelines, design exceptions are
encouraged and permitted. However, the consideration and selection of a
value outside of the established ranges should be based on the context
of the facility and an analysis of how the design may affect the
safety, flow of traffic, constructability, maintainability,
environment, cost, and other related issues.
An important consideration in identifying potential avoidance
alternatives is that they should have a reasonable expectation of
serving traffic needs that have been identified in the project purpose
and need. A final limitation in identifying potential avoidance
alternatives is that a project alternative that avoids one Section 4(f)
property by using another Section 4(f) property is not an avoidance
alternative. The goal is to identify alternatives that would not use
any Section 4(f) property. (Note: A determination of a de minimis
impact for a specific Section 4(f) property may be made without
considering avoidance alternatives for that property, even if that use
occurs as part of an alternative that also includes other uses that are
greater than de minimis.) Consequently, at this step of analysis the
degree of impact to Section 4(f) property is not relevant--the only
question is whether the alternative would require any use of Section
4(f) property because an alternative using any amount of Section 4(f)
property is not an avoidance alternative. Subsequent steps in the
analysis will consider the degree of impact as well as the availability
of measures to minimize impacts.
Once the potential avoidance alternative(s) have been identified,
the next task is to determine, for each potential avoidance option,
whether avoiding the Section 4(f) property is feasible and prudent. The
Section 4(f) regulations specify how FHWA is to determine whether a
potential avoidance alternative is feasible and prudent in 23 CFR
774.17. The definition explains that a ``feasible and prudent avoidance
alternative'' is one that avoids using Section 4(f) property and does
not cause other severe problems of a magnitude that substantially
outweigh the importance of protecting the Section 4(f) property. In
order to determine whether there are other severe problems of a
magnitude that substantially outweighs the importance of protecting the
Section 4(f) property, both the feasibility and the prudence of each
potential avoidance alternative must be considered.
Care must be taken when making determinations of feasibility and
prudence not to forget or de-emphasize the importance of protecting the
Section 4(f) property. This stems from the statute itself, which
requires that special effort should be made to preserve the natural
beauty of the countryside and public park and recreation lands,
wildlife and waterfowl refuges, and historic sites. The regulation
incorporates this aspect of the statute in the definition of feasible
and prudent avoidance alternative which states that ``it is appropriate
to consider the relative value of the resource to the preservation
purpose of the statute.'' In effect, the first part of the definition
recognizes the value of the individual Section 4(f) property in
question, relative to other Section 4(f) properties of the same type.
This results in a sliding scale approach that maximizes the protection
of Section 4(f) properties that are unique or otherwise of special
significance by recognizing that while all Section 4(f) properties are
important, some Section 4(f) properties are worthy of a greater degree
of protection than others.
The regulations state that a potential avoidance alternative is not
feasible if it cannot be built as a matter of sound engineering
judgment (23 CFR 774.17). If a potential avoidance alternative cannot
be built as a matter of sound engineering judgment it is not feasible
and the particular engineering problem with the alternative should be
documented in the project files with a reasonable degree of
explanation. In difficult situations, the FHWA Division may obtain
assistance from FHWA subject matter experts located in FHWA
Headquarters or the FHWA Resource Center.
The third and final part of the feasible and prudent avoidance
alternative definition sets out standards for determining if a
potential avoidance alternative is prudent. An alternative is not
prudent if:
(1) It compromises the project to a degree that it is unreasonable
to proceed in light of the project's stated purpose and need (i.e., the
alternative doesn't address the purpose and need of the project);
(2) It results in unacceptable safety or operational problems;
(3) After reasonable mitigation, it still causes severe social,
economic, or environmental impacts; severe disruption to established
communities; severe or disproportionate impacts to minority or low-
income populations; or severe impacts to environmental resources
protected under other Federal statutes;
(4) It results in additional construction, maintenance, or
operational costs of extraordinary magnitude;
(5) It causes other unique problems or unusual factors; or
(6) It involves multiple factors as outlined above that, while
individually minor, cumulatively cause unique problems or impacts of
extraordinary magnitude.
The prudence determination involves an analysis that applies each
of the six factors, if applicable, to the potential avoidance
alternative. If a factor is not applicable FHWA recommends simply
noting that fact in the analysis.
Supporting documentation is required in the Section 4(f) evaluation
for findings of no feasible and prudent alternatives (See 23 CFR
774.7(a)). Documentation of the process used to identify, develop,
analyze and eliminate potential avoidance alternatives is very
important. The Section 4(f) evaluation should describe all efforts in
this regard. This description need not include every possible detail,
but it should clearly explain the process that occurred and its
results. It is appropriate to maintain detailed information in the
project file with a summary in the Section 4(f) evaluation. If the
information is especially voluminous, a technical report should be
prepared, summarized, and referenced in the Section 4(f) evaluation.
The discussion may be organized within the Section 4(f) evaluation in
any manner that allows the reader to understand the full range of
potential avoidance alternatives identified, the process by which
potential avoidance alternatives were identified and analyzed for
feasibility and prudence. Possible methods for organizing the
discussion include a

[[Page 42810]]

chronological discussion; a discussion organized geographically by
project alternatives or project phases of construction; or by the type
of Section 4(f) properties.
For larger highway projects with multiple Section 4(f) properties
in the project area, it may be desirable to divide the analysis into a
macro and a micro-level evaluation in order to distinguish the analysis
of end-to-end project alternatives that avoid using any Section 4(f)
property from the analysis of design options to avoid using a single
Section 4(f) property. The macro-level evaluation would address any
end-to-end avoidance alternatives that can be developed, as well as any
alternative actions to the proposed highway project such as travel
demand reduction strategies or enhanced transit service in the project
area. The micro-level evaluation would then address, for each Section
4(f) property, whether the highway could be routed to avoid the
property by shifting to the left or right, by bridging over, or
tunneling under the property, or through another alignment shift or
design change. The analysis may be presented in any manner that
demonstrates, for each Section 4(f) property used, that there is no
feasible and prudent avoidance alternative. Even if all of the
alternatives use a Section 4(f) property, there is still a duty to try
to avoid the individual Section 4(f) properties within each
alternative.
3.3.3.2 Alternative With Least Overall Harm
If the analysis described in the preceding section concludes that
there is no feasible and prudent avoidance alternative, then FHWA may
approve, from among the remaining alternatives that use Section 4(f)
property, only the alternative that causes the least overall harm in
light of the statute's preservation purpose. Pursuant to substantial
case law, if the assessment of overall harm finds that two or more
alternatives are substantially equal, FHWA can approve any of those
alternatives. This analysis is required when multiple alternatives that
use Section 4(f) property remain under consideration.
To determine which of the alternatives would cause the least
overall harm, FHWA must compare seven factors set forth in 23 CFR
774.3(c)(1) concerning the alternatives under consideration. The first
four factors relate to the net harm that each alternative would cause
to Section 4(f) property:
(1) The ability to mitigate adverse impacts to each Section 4(f)
property (including any measures that result in benefits to the
property);
(2) The relative severity of the remaining harm, after mitigation,
to the protected activities, attributes, or features that qualify each
Section 4(f) property for protection;
(3) The relative significance of each Section 4(f) property; and
(4) The views of the officials with jurisdiction over each Section
4(f) property.
When comparing the alternatives under these factors, FHWA policy is
to develop comparable mitigation measures where possible. In other
words, the comparison may not be skewed by over-mitigating one
alternative while under-mitigating another alternative for which
comparable mitigation could be incorporated. In addition, the
mitigation measures relied upon as part of this comparison should be
incorporated into the selected alternative. If subsequent design or
engineering work occurs after the alternative is selected that requires
changes to the mitigation plans for Section 4(f) property, FHWA may
require revisions to previous mitigation commitments commensurate with
the extent of design changes in accordance with 23 CFR 771.109(b) and
(d), 127(b), 129, and 130.
The remaining three factors enable FHWA to take into account any
substantial problem with any of the alternatives remaining under
consideration on issues beyond Section 4(f). These factors are:
(5) The degree to which each alternative meets the purpose and need
for the project;
(6) After reasonable mitigation, the magnitude of any adverse
impacts to resources not protected by Section 4(f); and
(7) Substantial differences in costs among the alternatives.
By balancing the seven factors, four of which concern the degree of
harm to Section 4(f) properties, FHWA will be able to consider all
relevant concerns to determine which alternative would cause the least
overall harm in light of the statue's preservation purpose. The least
overall harm balancing test is set forth in 774.3(c)(1). This allows
FHWA to fulfill its statutory mandate to make project decisions in the
best overall public interest required by 23 U.S.C. 109(h). Through this
balancing of factors, FHWA may determine that a serious problem
identified in factors (v) through (vii) outweighs relatively minor net
harm to a Section 4(f) property. The least overall harm determination
also provides FHWA with a way to compare and select between
alternatives that would use different types of Section 4(f) properties
when competing assessments of significance and harm are provided by the
officials with jurisdiction over the impacted properties. In evaluating
the degree of harm to Section 4(f) properties, FHWA is required by the
regulations to consider the views (if any) expressed by the official(s)
with jurisdiction over each Section 4(f) property. If an official with
jurisdiction states that all resources within that official's
jurisdiction are of equal value, FHWA may still determine that the
resources have different value if such a determination is supported by
information in the project file. Also, if the officials with
jurisdiction over two different properties provide conflicting
assessments of the relative value of those properties, FHWA should
consider the officials' views but then make its own independent
judgment about the relative value of those properties. Similarly, if
the official(s) with jurisdiction decline to provide any input at all
regarding the relative value of the affected properties, FHWA should
make its own independent judgment about the relative value of those
properties.
FHWA is required to explain how the seven factors were compared to
determine the least overall harm alternative (See 23 CFR 774.7(c)). The
draft Section 4(f) evaluation will disclose the various impacts to the
different Section 4(f) properties thereby initiating the balancing
process. It should also disclose the relative differences among
alternatives regarding non-Section 4(f) issues such as the extent to
which each alternative meets the project purpose and need. The
disclosure of impacts should include both objective, quantifiable
impacts and qualitative measures that provide a more subjective
assessment of harm. Preliminary assessment of how the alternatives
compare to one another may also be included. After circulation of the
draft Section 4(f) evaluation in accordance with 23 CFR 774.5(a), FHWA
will consider comments received on the evaluation and finalize the
comparison of all factors listed in 23 CFR 774.3(c)(1) for all the
alternatives. The analysis and identification of the alternative that
has the overall least harm must be documented in the final Section 4(f)
evaluation (See 23 CFR 774.7(c)). In especially complicated projects,
the final approval to use the Section 4(f) property may be made in the
decision document (ROD or FONSI).
3.4 Examples of Section 4(f) Approvals
The table below describes five project alternative scenarios. In
each project

[[Page 42811]]

scenario various alternatives are considered and there are various
options available to approve the use of the Section 4(f) property
needed for the project. The examples illustrate the approval options as
well as the point that in some situations FHWA may only approve a
certain alternative. These examples are not intended to address every
possible scenario.
In Project 1 there is a single build alternative A, for which FHWA
determines the use to be a de minimis impact and therefore does not
require an individual Section 4(f) evaluation. Once the coordination
required by 23 CFR 774.5(b) is completed, FHWA may approve the de
minimis impact and the applicant may proceed with the build
alternative.
Project 2 has two alternatives. The FHWA determines that
alternative A has a de minimis impact on one Section 4(f) property, and
alternative B has a de minimis impact on three Section 4(f) properties.
Upon completion of the coordination required by 23 CFR 774.5(b), FHWA
may approve either alternative under Section 4(f). As in the previous
example, an individual Section 4(f) evaluation is not required,
therefore the feasibility and prudence of avoiding Section 4(f)
properties does not have to be determined. Furthermore, when there are
only de minimis impacts, even among multiple alternatives, a least harm
analysis is not necessary and there is no need to compare the
significance of the competing Section 4(f) properties. The process to
choose between alternatives A or B in the second example may be based
on non-Section 4(f) considerations as determined appropriate through
the project development process.
In Project 3, there are three alternatives under consideration. The
FHWA determines that alternative A meets the criteria of a de minimis
impact, while alternative B has a minor impact on a Section 4(f)
property for which the programmatic Section 4(f) evaluation for minor
uses is applicable. Alternative C would use a Section 4(f) property to
an extent that a de minimis impact determination is not possible and no
programmatic Section 4(f) evaluation applies. In this example, all
three alternatives use a Section 4(f) property and thus none can be
considered to be an avoidance alternative. For this project,
alternative A may proceed immediately once the coordination required by
23 CFR 774.5 is complete, through an approved de minimis impact
determination. Alternative B may be approved by following the
procedures designated in the applicable programmatic Section 4(f)
evaluation, whose end result demonstrates no feasible and prudent
avoidance alternative. However, in this example if the applicant favors
alternative C, then an individual Section 4(f) evaluation can be
prepared to consider whether or not alternative C can be approved under
Section 4(f). The individual Section 4(f) evaluation first determines
that there is no feasible and prudent avoidance alternative as defined
in 23 CFR 774.17. The evaluation then considers which alternative (A,
B, or C) has the least overall harm using the factors in 23 CFR
774.3(c). Alternative C could only be approved if it is identified as
having the least overall harm, which would be possible; for example, if
alternatives A and B both have severe impacts to an important non-
Section 4(f) resource and the impacts of alternative C can be
adequately mitigated. In that case, upon completion of the coordination
required by 23 CFR 775.5(a) and all possible planning to minimize harm
as defined in 23 CFR 774.17, alternative C could be approved.
Project 4 differs slightly in having multiple de minimis impacts to
Section 4(f) properties with alternative A, and a mix of de minimis
impacts and greater than de minimis impacts not covered by a
programmatic section 4(f) evaluation with alternative B. If alternative
A is chosen, FHWA would satisfy Section 4(f) by making a de minimis
impact determination for each property used in accordance with 23 CFR
774.3(b), 774.5(b), and 774.7(c). To consider selecting alternative B,
an individual Section 4(f) evaluation would be prepared in accordance
with 23 CFR 774.3(a), 774.5(a), and 774.7(a); however, a determination
of de minimis impact for a specific Section 4(f) property can be made
without considering avoidance alternatives for that property, even if
that use occurs as part of an alternative that also includes other uses
that are greater than de minimis. In this example, an additional
alternative C is developed as part of the Section 4(f) evaluation.
Alternative C avoids using any Section 4(f) property, and the
evaluation then determines, using the definition in 23 CFR 774.17, that
alternative C is feasible and prudent. Alternative C may proceed
immediately because it does not use any Section 4(f) property and no
Section 4(f) approval is needed. In this example, since alternative C
is a feasible and prudent avoidance alternative the FHWA may not
approve alternative B, although alternative A would still be available
for selection because its impacts on Section 4(f) properties are de
minimis. However, if the facts are changed and we now assume that the
evaluation of avoidance alternative C had found that it was not
feasible and prudent, then the Section 4(f) evaluation could be
completed. The evaluation would determine the least overall harm
amongst alternatives A and B using the factors in 23 CFR 774.3(c). (In
this variation of the example, the least overall harm determination
does not include alternative C in the comparison because alternative C
was previously eliminated when it was found not to be feasible and
prudent.) Alternative B could only be approved if it is identified as
having the least overall harm. This would be possible, for example if
alternative A would not meet the project purpose and need as well as
alternative B, alternative A would be substantially more expensive, and
the Section 4(f) property used by alternative B has no unusual
significance and could be adequately mitigated. In that example, upon
completion of the coordination required by 23 CFR 774.5(a) and all
possible planning to minimize harm as defined in 23 CFR 774.17,
alternative B could be approved even though it uses Section 4(f)
property.
Project 5 has two alternatives, both having greater than de minimis
impacts on a different Section 4(f) property. To choose among
alternatives A and B, an individual Section 4(f) evaluation must be
prepared in accordance with 23 CFR 774.3(a), 774.5(a), and 774.7(a)
that demonstrates no feasible and prudent avoidance alternative exists,
and a least overall harm analysis must be completed using the factors
in 23 CFR 774.3(c). The alternative identified as having the least
overall harm may proceed upon completion of the coordination required
by 23 CFR 774.5(a) and all possible planning to minimize harm as
defined in 23 CFR 774.17.

[[Page 42812]]

Table 1--Project Alternative Scenarios
----------------------------------------------------------------------------------------------------------------
Use of Section 4(f) Individual Section
Alternative property 4(f) evaluation? Outcome
----------------------------------------------------------------------------------------------------------------
Project 1, alternative A............. De minimis impact...... Not necessary.......... May proceed with A.
Project 2, alternative A............. De minimis impact on Not necessary.......... May proceed with A or
one property. B; Section 4(f) is not
determinative.
Project 2, alternative B............. De minimis impact on Not necessary..........
three properties.
Project 3, alternative A............. De minimis impact...... Not necessary.......... May proceed with A or
B; Section 4(f) is not
determinative.
Project 3, alternative B............. Minor use, programmatic Not necessary..........
Section 4(f)
evaluation is
applicable.
Project 3, alternative C............. Greater than de minimis Necessary. If no May proceed with C only
impact. feasible and prudent if C has less overall
avoidance alternative harm than A or B.
is identified, then a
least overall harm
analysis would compare
A, B, and C.
Project 4, alternative A............. De minimis impact on Not necessary.......... May proceed with A.
two properties.
Project 4, alternative B............. De minimis impact on Necessary. As part of If C is found feasible
one property & greater the evaluation, a new and prudent, cannot
than de minimis impact Alternative C is proceed with B. If C
on another property. developed that avoids is not feasible and
using Section 4(f) prudent, may proceed
property. with B only if B has
less overall harm than
A.
Project 4, alternative C............. None................... Not necessary to May proceed with C; no
complete the Section Section 4(f) approval
4(f) evaluation to is required.
proceed with C.
Project 5, alternative A............. Greater than de minimis Necessary. The Least overall harm
impact. evaluation must seek analysis determines
to identify feasible which alternative, A
and prudent avoidance or B, may proceed.
alternatives. Assuming
none are found, then a
least harm analysis
will compare A and B.
Project 5, alternative B............. Greater than de minimis
impact.
----------------------------------------------------------------------------------------------------------------

3.5 All Possible Planning To Minimize Harm
After determining that there are no feasible and prudent
alternatives to avoid the use of Section 4(f) property, the project
approval process for an individual Section 4(f) evaluation requires the
consideration and documentation of all possible planning to minimize
harm to Section 4(f) property (See 23 CFR 774.3(a)(2)). All possible
planning, defined in 23 CFR 774.17, means that all reasonable measures
identified in the Section 4(f) evaluation to minimize harm or mitigate
for adverse impacts and effects must be included in the project. All
possible planning to minimize harm does not require analysis of
feasible and prudent avoidance alternatives, since such analysis will
have already occurred in the context of searching for feasible and
prudent alternatives that avoid Section 4(f) properties altogether
under Sec. 774.3(a)(1).
Minimization of harm may entail both alternative design
modifications that reduce the amount of Section 4(f) property used and
mitigation measures that compensate for residual impacts. Minimization
and mitigation measures should be determined through consultation with
the official(s) with jurisdiction. These include the SHPO and/or THPO
for historic properties or officials owning or administering the
resource for other types of Section 4(f) properties. Mitigation
measures involving public parks, recreation areas, or wildlife or
waterfowl refuges may involve a replacement of land and/or facilities
of comparable value and function, or monetary compensation to enhance
the remaining land. Neither the Section 4(f) statute nor regulations
requires the replacement of Section 4(f) property used for highway
projects, but this option may be the most straightforward means of
minimizing harm to parks, recreation areas, and wildlife waterfowl
refuges and is permitted under 23 CFR 710.509 as a mitigation measure
for direct project impacts.
Mitigation of historic sites usually consists of those measures
necessary to preserve the historic integrity of the site and agreed to
in accordance with 36 CFR 800 by FHWA, the SHPO or THPO, and other
consulting parties. In any case, the cost of mitigation should be a
reasonable public expenditure in light of the severity of the impact on
the Section 4(f) property in accordance with 23 CFR 771.105(d).
Additional laws such as Section 6(f) of the Land and Water Conservation
Fund Act may have separate mitigation and approval requirements and
compliance with such requirements should also be described within the
Section 4(f) discussion of all possible planning to minimize harm.
4.0 Documentation
U.S. DOT departmental requirements for documenting Section 4(f)
analysis and approvals (DOT Order 5610.1C) have been incorporated into
FHWA regulations, guidance and policy. The FHWA's procedures regarding
the preparation and circulation of Section 4(f) documents is contained
in 23 CFR 774.5 and FHWA's Technical Advisory, T 6640.8A, Guidance for
Preparing and Processing of Environmental and Section 4(f)
Documents.\10\
---------------------------------------------------------------------------

\10\ These and other resources are available at the FHWA
Environmental Toolkit http://environment.fhwa.dot.gov/index.asp.
---------------------------------------------------------------------------

The documentation of all Section 4(f) determinations,
consultations, coordination and approvals is intended to establish a
record of FHWA's compliance with the regulatory process. Documentation
also provides evidence that the substantive requirements have been met.
Section 4(f) documentation and processing requirements vary depending
on the type of Section 4(f)

[[Page 42813]]

property used and whether or not the use meets the criteria of a de
minimis impact. However, all situations which involve Section 4(f)
property will necessitate some degree of documentation: either in the
NEPA document, a Section 4(f) evaluation, or the project file.
The project file is the agency's written record that memorializes
the basis for determining that an impact is de minimis or that there is
no feasible and prudent avoidance alternative to the use of the Section
4(f) property and that FHWA undertook all possible planning to minimize
harm to Section 4(f) property. When the agency determines that Section
4(f) is not applicable to a particular resource, written documentation
of that decision should be maintained as part of the project file. The
project file should include all relevant correspondence which may
include emails and other electronic information that is applicable to
the decision-making process. The project file should generally be
retained until three years after FHWA reimbursement on Federal-aid
projects and three years after final payment on non-Federal aid
projects (See FHWA Order M.1324.1A, 49 CFR 18.42, and 49 CFR 19.53).
De Minimis Impact Determinations
The de minimis impact determination must include sufficient
supporting documentation to demonstrate that the impacts, after
avoidance, minimization, mitigation, or enhancement measures are taken
into account, are de minimis as defined in 23 CFR 774.17; and that the
coordination required by 23 CFR 774.5(b) was completed.
Information related to the de minimis impact determination should
be included in the project NEPA document (EA or EIS), or in the project
file for a project processed as a CE (See 23 CFR 774.7(c)). Circulation
of this information in the project NEPA document may satisfy the public
involvement requirements required for de minimis impact findings. For
projects which include both de minimis impacts and use of Section 4(f)
property with more than a de minimis impact, the determination and
supporting data should be included in a separate section of the Section
4(f) evaluation.
Applying Programmatic Section 4(f) Evaluations
Information related to an approval to use Section 4(f) property by
applying a programmatic Section 4(f) evaluation should be included in
the project NEPA document (EA or EIS), or in the project file for a
project processed as a CE. For projects which include both a
programmatic Section 4(f) approval and a use of Section 4(f) property
for which there is more than a de minimis impact, information regarding
the application of the programmatic Section 4(f) evaluation should be
included in a separate section of the Section 4(f) evaluation.
The project file should include sufficient supporting documentation
to demonstrate that the programmatic evaluation being relied upon
applies to the use of the specific Section 4(f) property. In addition,
the project file should include documentation that the coordination
required by the applicable programmatic evaluation was completed and
that all specific conditions of the applicable programmatic evaluation
were met.
Individual Section 4(f) Evaluations
Individual Section 4(f) evaluations must include sufficient
analysis and supporting documentation to demonstrate that there is no
feasible and prudent avoidance alternative and shall summarize the
results of all possible planning to minimize harm (23 CFR 774.7(a)).
For projects requiring a least overall harm analysis under 23 CFR
774.3(c), that analysis must be included within the individual Section
4(f) evaluation (23 CFR 774.7(c)).
Individual Section 4(f) evaluations are processed in two distinct
stages: draft and final. Draft evaluations must be circulated to the
U.S. DOI and shared with the official(s) with jurisdiction. The public
may review and comment on a draft evaluation during the NEPA process.
When a project is processed as a CE the Section 4(f) evaluation must be
circulated independently to the U.S. DOI. In all cases, final Section
4(f) evaluations are subject to FHWA legal sufficiency review prior to
approval (23 CFR 774.5(d)).
Project Files
In general, the project file should contain the following essential
information, with analysis, regarding Section 4(f):
When making de minimis impact determinations
(1) Applicability or non-applicability of Section 4(f) to the park,
recreation, refuge or historic property proposed to be used by the
project;
(2) Whether or not there is a use of section 4(f) property;
(3) Records of public involvement, or Section 106 consultation;
(4) Results of coordination with the officials with jurisdiction;
(5) Comments submitted during the coordination procedures required
by 23 CFR 774.5 and responses to the comments; and
(6) Avoidance, minimization or mitigation measures that were relied
upon to make the de minimis impact finding.
When applying programmatic Section 4(f) evaluations
(1) Applicability or non-applicability of Section 4(f) to the park,
recreation, refuge or historic property proposed to be used by the
project;
(2) Whether or not there is a use of section 4(f) property;
(3) Records of public involvement, if any;
(4) Results of coordination with the officials with jurisdiction;
and
(5) Documentation of the specific requirements of the programmatic
evaluation that is being applied.
When preparing an individual Section 4(f) evaluation
(1) Applicability or non-applicability of Section 4(f) to the park,
recreation, refuge or historic property proposed to be used by the
project;
(2) Whether or not there is a use of Section 4(f) property;
(3) Activities, features, and attributes of the Section 4(f)
property;
(4) Analysis of the impacts to the Section 4(f) property;
(5) Records of public involvement;
(6) Results of coordination with the officials with jurisdiction;
(7) Alternatives considered to avoid using the Section 4(f)
property, including analysis of the impacts caused by avoiding the
Section 4(f) property;
(8) A least overall harm analysis, if appropriate;
(9) All measures undertaken to minimize harm to the Section 4(f)
property;
(10) Comments submitted during the coordination procedures required
by 23 CFR 774.5 and responses to the comments; and
(11) Results of the internal legal sufficiency review.
Administrative Records
If a Section 4(f) approval is legally challenged, the project file
will be the basis of the administrative record that must be filed in
the court for review. The administrative record will be reviewed in
accordance with the Administrative Procedure Act (APA), (5 U.S.C. 706
(2)(A)), which provides judicial deference to U.S. DOT actions. Under
the APA, the agency's action must be upheld unless it is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.

[[Page 42814]]

The court will review the administrative record to determine whether
FHWA complied with the essential elements of Section 4(f). If an
inadequate administrative record is prepared, the court will lack the
required Section 4(f) documentation to review and, therefore, will be
unable to defer to FHWA's decision, especially when a Section 4(f)
evaluation was not required. While agency decisions are entitled to a
presumption of regularity and the courts are not empowered to
substitute their judgment for that of the agency, judges will carefully
review whether FHWA followed the applicable requirements.

Part II--Questions and Answers Regarding Section 4(f) Applicability and
Compliance

The following questions and answers are intended to provide
additional and detailed guidance for complying with the requirements of
Section 4(f). Examples to aid in determining the applicability of
Section 4(f) to various types of property and project situations are
included. These examples represent FHWA's policy regarding Section 4(f)
compliance for situations most often encountered in the project
development process. Since it is impossible to address every situation
that could occur, it is recommended that the FHWA Division Office be
consulted for advice and assistance in determining the applicability of
Section 4(f) to specific circumstances not covered in this paper. The
FHWA Division Offices are encouraged to consult with the Headquarters
Office of Project Development and Environmental Review, the Resource
Center Environment Technical Services Team and/or the Office of the
Chief Counsel in cases where additional assistance in Section 4(f)
matters is required.
Identification of Section 4(f) Properties
1. Public Parks, Recreation Areas and Wildlife and Waterfowl Refuges
Question 1A: When is publicly owned land considered to be a park,
recreation area or wildlife and waterfowl refuge?
Answer: Publicly owned land is considered to be a park, recreation
area or wildlife and waterfowl refuge when the land has been officially
designated as such by a Federal, State or local agency, and the
officials with jurisdiction over the land determine that its primary
purpose is as a park, recreation area, or refuge. Primary purpose is
related to a property's primary function and how it is intended to be
managed. Incidental, secondary, occasional or dispersed activities
similar to park, recreational or refuge activities do not constitute a
primary purpose within the context of Section 4(f). Unauthorized
activities, such as ad hoc trails created by the public within a
conservation area, should not be considered as part of FHWA's
determination of Section 4(f) applicability.
In addition, the statute itself requires that a property must be a
significant public park, recreation area, or wildlife and waterfowl
refuge. The term significant means that in comparing the availability
and function of the park, recreation area or wildlife and waterfowl
refuge, with the park, recreation or refuge objectives of the agency,
community or authority, the property in question plays an important
role in meeting those objectives. Except for certain multiple-use land
holdings (Question 4), significance determinations are applicable to
the entire property and not just to the portion of the property
proposed for use by a project.
Significance determinations of publicly owned land considered to be
a park, recreation area, or wildlife and waterfowl refuge are made by
the official(s) with jurisdiction over the property. The meaning of the
term significance, for purposes of Section 4(f), should be explained to
the official(s) with jurisdiction if the official(s) are not familiar
with Section 4(f). Management plans or other official forms of
documentation regarding the land, if available and up-to-date, are
important and should be obtained from the official(s) and retained in
the project file. If a determination from the official(s) with
jurisdiction cannot be obtained, and a management plan is not available
or does not address the significance of the property, the property will
be presumed to be significant. However, all determinations, whether
stated or presumed, and whether confirming or denying significance of a
property for the purposes of Section 4(f), are subject to review by
FHWA for reasonableness pursuant to 23 CFR 774.11. When FHWA changes a
determination of significance, the basis for this determination will be
included in the project file and discussed in the environmental
documentation for the proposed action.

Question 1B: Can an easement or other encumbrance on private property
result in that property being subject to Section 4(f)?
Answer: Yes, in certain instances. Generally, an easement is the
right to use real property without possessing it, entitling the
easement holder to the privilege of some specific and limited use of
the land. Easements take many forms and are obtained for a variety of
purposes by different parties. Easements or similar encumbrances
restricting a property owner from making certain uses of his/her
property, such as conservation easements, are commonly encountered
during transportation project development. Easements such as these
often exist for the purpose of preserving open space, protection of
habitat, or to limit the extent and density of development in a
particular area, and they may be held by Federal, State or local
agencies or non-profit groups or other advocacy organizations.
Although a conservation easement may not meet all of the
requirements necessary to treat the property as a significant publicly-
owned public park, recreation area, or wildlife and waterfowl refuge,
it is a possibility that mandates careful case-by-case consideration
when encountered. The terms of the easement should be carefully
examined to determine if Section 4(f) applies to the property. Factors
to consider include, but are not limited to, the views of the
official(s) with jurisdiction, the purpose of the easement, the term of
the easement, degree of public access to the property, how the property
is to be managed and by whom, what parties obtained the easement
(public agency or non-public group), termination clauses, and what
restrictions the easement places on the property owner's use of the
easement area. Questions on whether or not an easement conveys Section
4(f) status to a property should be referred to the FHWA Division
Office and, if necessary, the Division Office should consult with the
Headquarters Office of Project Development and Environmental Review,
the Headquarters Office of Real Estate Services, the Resource Center
Environment Technical Service Team, or the Office of Chief Counsel.
Easements and deed restrictions for the purpose of historic
preservation are also commonly encountered during transportation
project development. Section 4(f) applicability questions are unlikely
to be encountered for these properties because if the property is not
on or eligible for the NR Section 4(f) does not apply, notwithstanding
the preservation easement. If the property is on or eligible for the
NR, Section 4(f) applies. However, the existence and nature of such
easements should be documented and considered as necessary within the
feasible and prudent analysis and least harm analysis if a Section 4(f)
evaluation is prepared.

[[Page 42815]]

Question 1C: When does a lease agreement with a governmental body
constitute public ownership?
Answer: In some instances, a lease agreement between a private
landowner and a governmental body may constitute a proprietary interest
in the land for purposes of Section 4(f). Generally, under a long term
lease to a governmental body, such land may be considered to be
``publicly owned'' land and if the property is being managed by the
governmental body as a significant public park, recreation area, or
wildlife and waterfowl refuge then a use of the property will be
subject to the requirements of Section 4(f). Such lease agreements
should be examined on a case-by-case basis with consideration of such
factors as the term of the lease, the understanding of the parties to
the lease, the existence of a cancellation clause, and how long the
lease has been in place. Questions on whether or not the leasehold
constitutes public ownership should be referred to the FHWA Division
Office, and if necessary the Division Office should consult with the
Headquarters Office of Project Development and Environmental Review,
the Resource Center Environment Technical Service Team, or the Office
of Chief Counsel. If FHWA determines that the lease agreement creates a
proprietary interest that is equivalent to public ownership, FHWA must
then determine whether the property is in fact being managed by the
government body as a significant public park, recreation area, or
wildlife and waterfowl refuge. If so, the property is subject to
Section 4(f).
Question 1D: Are significant publicly owned parks and recreation areas
that are not open to the general public subject to the requirements of
Section 4(f)?
Answer: The requirements of Section 4(f) would apply if the entire
public park or public recreation area permits visitation of the general
public at any time during the normal operating hours. Section 4(f)
would not apply when visitation is permitted to a select group only and
not to the entire public. Examples of select groups include residents
of a public housing project; military service members and their
dependents; students of a public school; and students, faculty, and
alumni of a public college or university (See Question 18B). The FHWA
does, however, strongly encourage the preservation of such parks and
recreation areas even though they may not be open to the general public
or are not publicly owned and therefore are not protected by Section
4(f).
It should be noted that wildlife and waterfowl refuges have not
been included in this discussion. Many wildlife and waterfowl refuges
allow public access, while others may restrict public access to certain
areas within the refuge or during certain times or seasons of the year
for the protection of refuge habitat or species. In these cases, the
property should be examined by the FHWA Division Office to verify that
the primary purpose of the property is for wildlife and waterfowl
refuge activities and not for other non-Section 4(f) activities, and
that the restrictions on public access are limited to measures
necessary to protect refuge habitat or species. If it is determined
that the primary purpose of the property is for wildlife and waterfowl
refuge activities and that the restrictions on public access are
limited to the measures necessary to protect the refuge habitat or
species, then the property is subject to Section 4(f) notwithstanding
the access restriction.
Question 1E: What is a wildlife and waterfowl refuge for purposes of
Section 4(f)?

Answer: The term wildlife and waterfowl refuge is not defined in
the Section 4(f) law. On the same day in 1966 that Section 4(f) was
passed, Congress also passed the National Wildlife Refuge System
Administration Act (Pub. L. 89-669, 80 Stat. 926) to provide for the
conservation, protection, and propagation of native species of fish and
wildlife, including migratory birds, that are threatened with
extinction; to consolidate the authorities relating to the
administration by the Secretary of the Interior of the National
Wildlife Refuge System; and for other purposes. The Refuge System
referred to in that Act includes areas that were designated as wildlife
refuges and waterfowl refuges.\11\ FHWA has considered this
contemporaneous legislation in our implementation of Section 4(f)
regarding refuges. For purposes of Section 4(f), National Wildlife
Refuges \12\ are always considered wildlife and waterfowl refuges by
FHWA in administering Section 4(f); therefore no individual
determination of their Section 4(f) status is necessary. In addition,
any significant publicly owned public property (including waters) where
the primary purpose of such land is the conservation, restoration, or
management of wildlife and waterfowl resources including, but not
limited to, endangered species and their habitat is considered by FHWA
to be a wildlife and waterfowl refuge for purposes of Section 4(f).
---------------------------------------------------------------------------

\11\ The National Wildlife Refuge System is currently comprised
of the various categories of areas that are administered by the
Secretary for the conservation of fish and wildlife, including
species that are threatened with extinction, all lands, waters, and
interests therein administered by the Secretary as wildlife refuges,
areas for the protection and conservation of fish and wildlife that
are threatened with extinction, wildlife ranges, game ranges,
wildlife management areas, or waterfowl production areas (16 U.S.C.
668dd(a)(1)).
\12\ The DOI's regulations state: ``All national wildlife
refuges are maintained for the primary purpose of developing a
national program of wildlife and ecological conservation and
rehabilitation. These refuges are established for the restoration,
preservation, development and management of wildlife and wildlands
habitat; for the protection and preservation of endangered or
threatened species and their habitat; and for the management of
wildlife and wildlands to obtain the maximum benefits from these
resources'' (50 CFR 25.11(b)).
---------------------------------------------------------------------------

In determining the primary purpose of the land, consideration
should be given to:
(1) The authority under which the land was acquired;
(2) Lands with special national or international designations;
(3) The management plan for the land; and,
(4) Whether the land has been officially designated, by a Federal,
State, or local agency with jurisdiction over the land, as an area
whose primary purpose and function is the conservation, restoration, or
management of wildlife and waterfowl resources including, but not
limited to, endangered species and their habitat.
Many refuge-type properties permit recreational activities that are
generally considered not to conflict with species conservation, such as
trails, wildlife observation and picnicking. Other activities, such as
educational programs, hunting, and fishing, may also be allowed when
the activity is consistent with the broader species conservation goals
for the property.
Examples of properties that may function as wildlife and waterfowl
refuges for purposes of Section 4(f) include: State or Federal wildlife
management areas, a wildlife reserve, preserve or sanctuary; and
waterfowl production areas including wetlands and uplands that are
permanently set aside (in a form of public ownership) primarily for
refuge purposes. The FHWA should consider the ownership, significance,
function and primary purpose of such properties in determining if
Section 4(f) will apply. In making the determination, the FHWA should
review the existing management plan and consult with the Federal, State
or local official(s) with jurisdiction over

[[Page 42816]]

the property. In appropriate cases, these types of properties will be
considered multiple-use public land holdings (See 23 CFR 774.11(d) and
Question 4) and must be treated accordingly.
The U.S. DOI administers a variety of Federal grant programs in
support of hunting, fishing, and related resource conservation. While
the fact that a property owned by a State or local government has at
some time in the past been the beneficiary of such a grant does not
automatically confer Section 4(f) status, the existence and terms of
such a prior grant, when known, should be considered along with the
other aspects of the property described above when determining if the
property should be treated as a wildlife and waterfowl refuge for
purposes of Section 4(f). Finally, it should be noted that sites
purchased as mitigation for transportation projects (e.g., for
endangered species impacts) can be considered refuges for purposes of
Section 4(f) if the mitigation sites meet all of the applicable
criteria for Section 4(f) status as a refuge, including public
ownership and access, significance, and functioning primarily as a
refuge.
2. Historic Sites
Question 2A: How is Section 4(f) significance of historic sites
determined?
Answer: Historic site is defined in 23 CFR 774.17. For purposes of
Section 4(f), a historic site is significant only if it is on or
eligible for the NR. Pursuant to the NHPA, FHWA in cooperation with the
applicant consults with the SHPO and/or THPO, tribes that may attach
religious and cultural significance to the property, and when
appropriate, with local officials to determine whether a site is
eligible for the NR. In case of disagreement between FHWA and the SHPO/
THPO or if so requested by the ACHP, FHWA shall request a determination
of eligibility from the Keeper of the NR (36 CFR 800.4(c)(2)). Any
third party may also seek the involvement of the Keeper by asking the
ACHP to request that the Federal agency seek a determination of
eligibility.
If a site is determined not to be on or eligible for the NR, FHWA
still may determine that the application of Section 4(f) is appropriate
when an official (such as the Mayor, president of the local historic
society, etc.) formally provides information to indicate that the
historic site is of local significance. In rare cases such as this,
FHWA may determine that it is appropriate to apply Section 4(f) to that
property. In the event that Section 4(f) is found inapplicable, the
FHWA Division Office should document the basis for not applying Section
4(f). Such documentation might include the reasons why the historic
site was not eligible for the NR.
Question 2B: How does Section 4(f) apply in historic districts that are
on or eligible for the NR?
Answer: Within a NR listed or eligible historic district, FHWA's
long-standing policy is that Section 4(f) applies to those properties
that are considered contributing to the eligibility of the historic
district, as well as any individually eligible property within the
district. Elements within the boundaries of a historic district are
assumed to contribute, unless they are determined by FHWA in
consultation with the SHPO/THPO not to contribute (See also Question
7C).
Question 2C: How should the boundaries of a property eligible for
listing on the NR be determined where a boundary has not been
established?
Answer: In this situation, FHWA makes the determination of a
historic property's boundary under the regulations implementing Section
106 of the NHPA in consultation with the SHPO/THPO. The identification
of historic properties and the determination of boundaries should be
undertaken with the assistance of qualified professionals during the
early stages of the NEPA process. This process should include the
collection, evaluation and presentation of the information to document
FHWA's determination of the property boundaries. The determination of
eligibility, which would include boundaries of the site, rests with
FHWA, but if the SHPO or THPO objects, or if the ACHP or the Secretary
of the Interior so requests, then FHWA shall obtain a determination
from the Keeper of the NR (36 CFR 800.4(c)(2)).
Selection of boundaries is a judgment based on the nature of the
property's significance, integrity, setting and landscape features,
functions and research value. Most boundary determinations will take
into account the modern legal boundaries, historic boundaries
(identified in tax maps, deeds, or plats), natural features, cultural
features and the distribution of resources as determined by survey and
testing for subsurface resources. Legal property boundaries often
coincide with the proposed or eligible historic site boundaries, but
not always and, therefore, should be individually reviewed for
reasonableness. The type of property at issue, be it a historic
building, structure, object, site or district and its location in
either urban, suburban or rural areas, should include the consideration
of various and differing factors set out in the National Park Service
Bulletin: Defining Boundaries for National Register Properties.\13\
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\13\ http://www.cr.nps.gov/nr/publications/bulletins/boundaries.

Question 2D: How do you reconcile the phased approach to identification
and evaluation and treatment of historic properties under Section 106
of the NHPA with the timing for the completion of Section 4(f)
requirements?
Answer: Compliance with Section 4(f) requires FHWA to carry out a
reasonable level of effort to identify historic properties prior to
issuing a Section 4(f) approval. The reasonableness of the level of
effort depends upon the anticipated effects of the project and nature
of likely historic resources present in the affected project area.
Accordingly, the reasonable level of effort varies from project to
project. While a visual survey may be necessary to identify above
ground resources, it may be possible to rule out the likelihood for the
presence of significant below ground resources based on literature
review, prior studies of the area, consultation with consulting parties
(e.g., Indian tribes) and factors that relate to archeological
preservation such as soil and slope types. If a phased approach to
identification and evaluation of historic properties is adopted
pursuant to the Section 106 regulations, the methodology for that
approach should be coordinated with FHWA to ensure that it will also
satisfy Section 4(f) requirements.
You may be able to establish without carrying out a field survey
that there is little or no potential for the presence of archeological
resources that have value for preservation in place, and therefore are
subject to Section 4(f). The project file should include documentation
of the level of effort and justification for the conclusion that it is
unlikely that there are additional unrecorded historic properties that
could be subject to Section 4(f). A Memorandum of Agreement or project
specific Programmatic Agreement focusing on a process for subsequent
compliance should be executed prior to project approval. Those
agreements may provide for the completion of additional identification
and evaluation (e.g., archeological resource studies), assessment of
effects, and refinement of

[[Page 42817]]

mitigation measures after NEPA is approved.
Question 2E: How are National Historic Landmarks (NHL) treated under
Section 4(f)?
Answer: Section 4(f) requirements related to the potential use of
an NHL designated by the Secretary of Interior are essentially the same
as they are for any historic property determined eligible under the
Section 106 process, except that the July 5, 1983 Programmatic Section
4(f) Evaluation and Approval for FHWA Projects that Necessitate the Use
of Historic Bridges may not be relied upon to approve the use of a
historic bridge that is an NHL.
Section 110(f) of the NHPA (16 U.S.C. 470-h-2) outlines the
specific actions that an Agency must take when a NHL may be directly
and adversely affected by an undertaking. Agencies must, ``to the
maximum extent possible * * * minimize harm'' to the NHL affected by an
undertaking. While not expressly stated in the Section 4(f) statute or
regulations, the importance and significance of the NHL should be
considered in the FHWA's Section 4(f) analysis of least overall harm
pursuant to 23 CFR 774.3(c)(1)(iii). In addition, where there is a
potential adverse effect to an NHL determined under the Section 106
process, the Secretary of Interior must be notified and given the
option to participate in the Section 106 process. When the U.S. DOI has
elected to participate, their representative (typically, the National
Park Service) should be recognized as an additional official with
jurisdiction and included in the required coordination in the course of
the Section 4(f) process.
3. Archeological Resources
Question 3A: When does Section 4(f) apply to archeological sites?
Answer: Section 4(f) applies to archeological sites that are on or
eligible for the NR and that warrant preservation in place, including
those sites discovered during construction as discussed in Question 3B.
Section 4(f) does not apply if FHWA determines, after consultation with
the SHPO/THPO, federally recognized Indian tribes (as appropriate), and
the ACHP (if participating) that the archeological resource is
important chiefly because of what can be learned by data recovery (even
if it is agreed not to recover the resource) and has minimal value for
preservation in place, and the SHPO/THPO and ACHP (if participating)
does not object to this determination (See 23 CFR 774.13(b)). The
destruction of a significant archaeological resource without first
recovering the knowledge of the past inherent in that resource should
not be taken lightly. Efforts to preserve the resource or develop and
execute a data recovery plan should be addressed in the Section 106
process.

Question 3B: How are archeological sites discovered during construction
of a project handled?
Answer: When archeological sites are discovered during construction
(23 CFR 774.9(e) and 11(f)), FHWA must determine if an approval is
necessary or if an exception applies under 23 CFR 774.13(c) (See
Question 26). Where preservation in place is warranted and a Section
4(f) approval would be required, the Section 4(f) process will be
expedited. In such cases, the evaluation of feasible and prudent
alternatives will take into account the level of investment already
made. The review process, including the consultation with other
agencies should be shortened, as appropriate consistent with the
process set forth in Section 106 of the NHPA regulations and should
include Indian tribes that may attach religious and cultural
significance to sites discovered (36 CFR 800.13). Discoveries may be
addressed prior to construction in agreement documents that set forth
procedures that plan for subsequent discoveries. When discoveries occur
without prior planning, the Section 106 regulation calls for reasonable
efforts to avoid, minimize, or mitigate such sites and provides an
expedited timeframe for interested parties to reach resolution
regarding treatment of the site. A decision to apply Section 4(f),
based on the outcome of the Section 106 process, to an archeological
discovery during construction would trigger an expedited Section 4(f)
evaluation. Because the U.S. DOI has a responsibility to review
individual Section 4(f) evaluations and is not usually a party to the
Section 106 process, the U.S. DOI should be notified and any comments
they provide considered within a shortened response period.
Question 3C: How do the Section 4(f) requirements apply to
archaeological districts?>
Answer: Section 4(f) requirements apply to archeological districts
in the same way they apply in historic districts, but only where
preservation in place is warranted. There would not be a Section 4(f)
use if, after consultation with the SHPO/THPO, FHWA determines that the
project would use only a part of the archaeological district which is
considered a non-contributing element of that district or that the
project occupies only a part of the district which is important chiefly
because of what can be learned by data recovery and has minimal value
for preservation in place. As with a historic district, if the project
does not use any individual contributing element of the archeological
district which is significant for preservation in place and FHWA
determines that the project will result in an adverse effect, then FHWA
must consider whether or not the proximity impacts will result in a
constructive use in accordance with 23 CFR 774.15.
4. Public Multiple-Use Land Holdings
Question 4: Are multiple-use public land holdings (e.g., National
Forests, State Forests, Bureau of Land Management lands) subject to the
requirements of Section 4(f)?
Answer: When applying Section 4(f) to multiple-use public land
holdings, FHWA must comply with 23 CFR 774.11(d). Section 4(f) applies
only to those portions of a multiple-use public property that are
designated by statute or identified in an official management plan of
the administering agency as being primarily for public park,
recreation, or wildlife and waterfowl refuge purposes, and are
determined to be significant for such purposes. Section 4(f) will also
apply to any historic sites within the multiple-use public property
that are on or eligible for the NR. Multiple-use public land holdings
are often vast in size, and by definition these properties are
comprised of multiple areas that serve different purposes. Section 4(f)
does not apply to those areas within a multiple-use public property
that function primarily for any purpose other than significant park,
recreation or refuge purposes. For example, within a National Forest,
there can be areas that qualify as Section 4(f) resources (e.g.
campgrounds, trails, picnic areas) while other areas of the property
function primarily for purposes other than park, recreation or a refuge
such as timber sales or mineral extraction. Coordination with the
official(s) with jurisdiction and examination of the management plan
for the area will be necessary to determine if Section 4(f) should
apply to an area of a multiple-use property that would be used by a
transportation project.
For multiple-use public land holdings which either do not have
formal management plans or when the existing formal management plan is
out-of-date, FHWA will examine how the property functions and how it is
being managed to determine Section 4(f) applicability for the various
areas of the property. This review will include coordination

[[Page 42818]]

with the official(s) with jurisdiction over the property.
5. Tribal Lands and Indian Reservations
Question 5: How are lands owned by Federally Recognized Tribes, and/or
Indian Reservations treated for the purposes of Section 4(f)?
Answer: Federally recognized Indian Tribes are sovereign nations
and the land owned by them is not considered publicly owned within the
meaning of Section 4(f). Therefore, Section 4(f) does not automatically
apply to tribal land. In situations where it is determined that the
property or resource owned by a Tribal Government or within an Indian
Reservation functions as a significant public park, recreational area,
or wildlife and waterfowl refuge (which is open to the general public),
or is eligible for the NR, the land would be considered Section 4(f)
property.
6. Traditional Cultural Places (TCPs)
Question 6: Are lands that are considered to be traditional cultural
places subject to the provisions of Section 4(f)?
Answer: A TCP is defined generally as land that may be eligible for
inclusion in the NR because of its association with cultural practices
or beliefs of a living community that; (a) are rooted in that
community's history, and (b) are important in maintaining the
continuing cultural identity of the community.\14\ Land referred to as
a TCP is not automatically considered historic property, or treated
differently from other potentially historic property. A TCP must also
meet the NR criteria as a site, structure, building, district, or
object to be eligible under Section 106, and thus for Section 4(f)
protection. For those TCPs of significance to an Indian tribe or Native
Hawaiian Organization (NHO), the THPO or designated representative of
the Indian tribe or NHO should be acknowledged as possessing special
expertise to assess the NR eligibility of the resources that possess
religious and cultural significance to them. TCPs may be eligible under
multiple criteria and therefore should not be presumed to be eligible
only as archeological resources (See 23 CFR 774.11(e)).
---------------------------------------------------------------------------

\14\ For more information on the subject of TCPs see National
Register Bulletin 38, Guidelines for Evaluating and
Documenting Traditional Cultural Properties http://www.nps.gov/history/NR/publications/bulletins/nrb38/nrb38.pdf.
---------------------------------------------------------------------------

Use of Section 4(f) Properties
7. Use of Section 4(f) Property
Question 7A: What constitutes a transportation use of property from
publicly owned public parks, public recreation areas, wildlife and
waterfowl refuges and public or privately owned historic sites?
Answer: A use of Section 4(f) property is defined in 23 CFR 774.17.
A use occurs when:
(1) Land is permanently incorporated into a transportation
facility;
(2) There is a temporary occupancy of land that is adverse in terms
of the Section 4(f) statute's preservationist purposes; or
(3) There is a constructive use of a Section 4(f) property.
Permanent Incorporation: Land is considered permanently
incorporated into a transportation project when it has been purchased
as right-of-way or sufficient property interests have otherwise been
acquired for the purpose of project implementation. For example, a
permanent easement required for the purpose of project construction or
that grants a future right of access onto a Section 4(f) property, such
as for the purpose of routine maintenance by the transportation agency,
would be considered a permanent incorporation of land into a
transportation facility.
Temporary Occupancy: Examples of temporary occupancy of Section
4(f) land include right-of-entry, project construction, a temporary
easement, or other short-term arrangement involving a Section 4(f)
property. A temporary occupancy will not constitute a Section 4(f) use
when all of the conditions listed in 23 CFR 774.13(d) are satisfied:
(1) Duration must be temporary, i.e., less than the time needed for
construction of the project, and there should be no change in ownership
of the land;
(2) Scope of the work must be minor, i.e., both the nature and the
magnitude of the changes to the Section 4(f) property are minimal;
(3) There are no anticipated permanent adverse physical impacts,
nor will there be interference with the protected activities, features,
or attributes of the property, on either a temporary or permanent
basis;
(4) The land being used must be fully restored, i.e., the property
must be returned to a condition which is at least as good as that which
existed prior to the project; and
(5) There must be documented agreement of the official(s) with
jurisdiction over the Section 4(f) resource regarding the above
conditions.

In situations where the above criteria cannot be met, the temporary
occupancy will be a use of Section 4(f) property and the appropriate
Section 4(f) analysis, coordination, and documentation will be required
(See 23 CFR 774.13(d)). In those cases where a temporary occupancy
constitutes a use of Section 4(f) property and the de minimis impact
criteria (Questions 10 and 11) are also met, a de minimis impact
finding may be made. De minimis impact findings should not be made in
temporary occupancy situations that do not constitute a use of Section
4(f) property.
Constructive Use: FHWA must comply with 23 CFR 774.15 to determine
whether or not there is a constructive use of Section 4(f) property.
Constructive use of Section 4(f) property is only possible in the
absence of a permanent incorporation of land or a temporary occupancy
of the type that constitutes a Section 4(f) use. Constructive use
occurs when the proximity impacts of a project on an adjacent or near-
by Section 4(f) property, after incorporation of impact mitigation, are
so severe that the activities, features, or attributes that qualify the
property for protection under Section 4(f) are substantially impaired.
Substantial impairment occurs when the protected activities, features,
or attributes of the Section 4(f) property are substantially
diminished. As a general matter this means that the value of the
resource, in terms of its Section 4(f) purpose and significance
(Questions 1 and 2), will be meaningfully reduced or lost. The degree
of impact and impairment must be determined in consultation with the
officials with jurisdiction in accordance with 23 CFR 774.15(d)(3). In
those situations where a potential constructive use can be reduced
below a substantial impairment by the inclusion of mitigation measures,
there will be no constructive use and Section 4(f) will not apply.
The Section 4(f) regulations identify specific project situations
where constructive use would and would not occur. The impacts of
projects adjacent to or in reasonable proximity of Section 4(f)
property should be carefully examined early in the NEPA process
pursuant to 23 CFR Part 771. If it is determined that the proximity
impacts do not cause a substantial impairment, FHWA can reasonably
conclude that there will be no constructive use. The analysis of
proximity impacts and potential constructive use should be documented
in the project file. Documentation of a finding of no constructive use
should apply the legal

[[Page 42819]]

standards and terminology used in 23 CFR 774.15, Constructive Use
Determinations. The use of the term ``constructive use'' is not
required in such documentation, but should be used when appropriate--
for example, when responding to comments in NEPA documents that
specifically address constructive use, or where it is useful in
demonstrating that FHWA has specifically considered the potential for a
constructive use. Where a constructive use determination seems likely,
the FHWA Division Office is required by the Administrator's delegation
of Section 4(f) authority to consult with the Headquarters Office of
Project Development and Environmental Review before the determination
is finalized.
Since a de minimis impact finding can only be made where the
transportation use does not adversely affect the activities, features,
or attributes that qualify a property for protection under Section
4(f), a de minimis impact finding is inappropriate where a project
results in a constructive use (See 23 CFR 774.3(b) and the definition
of de minimis impact in 774.17).

Question 7B: Does Section 4(f) apply when there is an adverse effect
determination under the regulations implementing Section 106 of the
NHPA?

Answer: FHWA's determination of adverse effect under the Section
106 process (See 36 CFR 800.5) does not automatically mean that Section
4(f) will apply. Nor does a determination of no adverse effect mean
that Section 4(f) will not apply in some cases. When a project
permanently incorporates land of a historic site, regardless of the
Section 106 determination, Section 4(f) will apply. If a project does
not permanently incorporate land from the historic property but results
in an adverse effect, it will be necessary for FHWA to further assess
the proximity impacts of the project in terms of the potential for
constructive use (Question 7A). This analysis is necessary to determine
if the proximity impact(s) substantially impair the features or
attributes that contribute to the NR eligibility of the historic site.
If there is no substantial impairment, notwithstanding an adverse
effect determination, there is no constructive use and Section 4(f)
does not apply. The FHWA determines if there is a substantial
impairment by consulting with all identified officials with
jurisdiction, including the SHPO/THPO and the ACHP if participating, to
identify the activities, features, and attributes of the property that
qualify it for Section 4(f) protection and by analyzing the proximity
impacts of the project (including any mitigation) on those activities,
features, and attributes (See 23 CFR 774.15(d)(3)). The determination
of Section 4(f) applicability is ultimately FHWA's decision, and the
considerations and consultation that went into that decision should be
documented in the project file.
An example of a situation in which there is a Section 106 adverse
effect but no Section 4(f) use, is a proposed transportation
enhancement project that would convert a historic railroad depot into a
tourist center. For public use, the project will require consistency
with the American with Disabilities Act (ADA). The incorporation of
accessible ramps or elevator may result in a determination of adverse
effect; however, there is no permanent incorporation of Section 4(f)
land into a transportation facility. The FHWA may determine, after
consultation with the SHPO/THPO on the historic attributes and impacts
thereto, that the project will not substantially impair the attributes
of the historic property. There would not be a Section 4(f) use in this
case. There would be a Section 4(f) use only if land from the property
is either incorporated into a transportation facility or if the
property is substantially impaired.
Another example of an adverse effect where there is no Section 4(f)
use might be construction of a new highway within the immediate view
shed of a historic farmstead that results in an adverse effect finding
under Section 106 for the diminishment of the setting. It is unlikely
this visual intrusion would reach the threshold of substantial
impairment of the attributes which cause the farmstead to be eligible
for the NR as it would still retain its historic fabric and use
features; however, a constructive use could occur where the proximity
of the proposed project substantially impairs esthetic features or
attributes of a property protected by Section 4(f), where such features
or attributes are considered important contributing elements to the
value of the property.
An example of a Section 4(f) use without a Section 106 adverse
effect involves a project on existing alignment, which proposes minor
modification at an intersection. To widen the roadway sufficiently a
small amount of land from an adjacent historic site will be acquired.
The land acquisition does not alter the integrity of the historic site
and the SHPO concurs in FHWA's determination of no adverse effect. Even
though under Section 106 there is no adverse effect, land from the site
will be permanently incorporated into the transportation facility and
Section 4(f) will apply. The use would likely qualify as a de minimis
impact or may be approved using the Nationwide Section 4(f) Evaluation
and Approval for Federally-Aided Highway Projects with Minor
Involvements with Historic Sites\15\ depending on the circumstances of
the project.
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\15\ http://www.environment.fhwa.dot.gov/projdev/pd5sec4f.asp.
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Question 7C: How is a Section 4(f) use determined in historic
districts?
Answer: When a project requires land from a non-historic or non-
contributing property lying within a historic district and does not use
other land within the historic district that is considered contributing
to its historic significance, FHWA's longstanding policy is that there
is no direct use of the historic district for purposes of Section 4(f).
With respect to constructive use, if the Section 106 consultation
results in a determination of no historic properties affected or no
adverse effect, there is no Section 4(f) constructive use of the
district as a whole. If the project requires land from a non-historic
or non-contributing property, and the Section 106 consultation results
in a determination of adverse effect to the district as a whole,
further assessment is required pursuant to 23 CFR 774.15 to determine
whether or not there will be a constructive use of the district. If the
use of a non-historic property or non-contributing element
substantially impairs the activities, features, or attributes that are
related to the NR eligibility of the historic district, then Section
4(f) would apply. In any case, appropriate steps, including
consultation with the SHPO/THPO on the historic attributes of the
district and impacts thereto, should be taken to establish whether the
property is contributing or non-contributing to the district and
whether its use would substantially impair the historic attributes of
the historic district.
For example, an intersection improvement proposed in a NR listed or
eligible historic district, requires the demolition of a modern
building that is neither individually eligible for the NR nor is a
contributing element of the district. Although no right-of-way will be
acquired from an individually eligible or contributing property, it is
consistent with the NHPA regulations that there will be an adverse
effect to the historic district because of changes resulting from the
wider intersection

[[Page 42820]]

and installation of more extensive traffic signals. It may be
reasonably determined, however, that no individually eligible property,
contributing element, or the historic district as a whole will be
substantially impaired. Accordingly, in this example a Section 4(f) use
will not occur in the form of either a permanent incorporation or a
constructive use.
When a project uses land from an individually eligible property
within a historic district, or a property that is a contributing
element to the historic district, Section 4(f) is applicable. In
instances where a determination is made under Section 106 of no
historic properties affected or no adverse effect, then the use may be
approved with a de minimis impact determination. If the use does not
qualify for a de minimis impact determination, an individual Section
4(f) evaluation will be necessary. Exceptions recognized in 23 CFR
774.13 may be applied to individually eligible or contributing
properties within a historic district, and to contributing elements
within a historic district.

Question 7D: How are historic resources within highway rights-of-way
considered?
Answer: In some parts of the country it is not uncommon for
historic objects or features not associated with the roadway to exist
within the highway right-of-way. Examples include rock walls, fences,
and structures that are associated with an adjacent historic property.
Others are linear properties such as drainage systems or railroad
corridors. These properties, objects, or features are either not
transportation in nature or are part of the roadway itself. This
condition occurs for various reasons such as historic property
boundaries coinciding with the roadway centerline or edge of the road,
or situations where right-of-way was acquired but historic features
were allowed to remain in place. When a future transportation project
is advanced resulting in a Section 106 determination of no historic
properties affected or no adverse effect to such resources, there would
be no Section 4(f) use. If the historic features are determined to be
adversely affected, the adverse effect should be evaluated to determine
whether it results in a Section 4(f) use.
8. Historic Bridges, Highways and Other Transportation Facilities
Question 8A: How does Section 4(f) apply to historic transportation
facilities?
Answer: The Section 4(f) statute imposes conditions on the use of
land from historic sites for highway projects but makes no mention of
bridges, highways, or other types of facilities such as railroad
stations or terminal buildings, which may be historic and are already
serving as transportation facilities. The FHWA's interpretation is that
the Congress clearly did not intend to restrict the rehabilitation or
repair, of historic transportation facilities. The FHWA therefore
established a regulatory provision that Section 4(f) approval is
required only when a historic bridge, highway, railroad, or other
transportation facility is adversely affected by the proposed project;
e.g. the historic integrity (for which the facility was determined
eligible for the NR) is adversely affected by the proposed project (See
23 CFR 774.13(a)).
Question 8B: Will Section 4(f) apply to the replacement of a historic
bridge that is left in place?
Answer: FHWA's longstanding policy is that Section 4(f) does not
apply to the replacement of a historic bridge on new location when the
historic bridge is left in its original location and its historic
integrity and value will be maintained. To maintain the integrity of
the historic bridge, FHWA should ensure that a mechanism is in place
for continued maintenance of the bridge that would avoid harm to the
bridge due to neglect. In these situations it is also necessary to
consider whether or not the proximity impacts of the new bridge will
result in substantial impairment of the historic bridge that is left in
place or whether there are other properties present which should be
afforded consideration pursuant to Section 4(f). These considerations
should be documented in the project file.
Question 8C: How do the requirements of Section 4(f) apply to donations
of historic bridges to a State, locality, or responsible private
entity?
Answer: A State DOT or local public agency that proposes to
demolish a historic bridge for a replacement project may first make the
bridge available for donation to a State, locality or a responsible
private entity. This process is commonly known as marketing the
historic bridge and often involves relocation of the structure, if the
bridge is of a type suitable for relocation. Provided the State,
locality or responsible entity that accepts the bridge enters into an
agreement to maintain the bridge and the features that contribute to
its historic significance and assume all future legal and financial
responsibility for the bridge, Section 4(f) will not apply to the
bridge.
If the bridge marketing effort is unsuccessful and the bridge will
be demolished or relocated without preservation commitments, Section
4(f) will apply and the appropriate Section 4(f) analysis, consultation
and documentation will be required. The Programmatic Section 4(f)
Evaluation and Approval for FHWA Projects that Necessitate the Use of
Historic Bridges \16\ may be used.
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\16\ The Section 4(f) programmatic evaluations are available at
http://www.environment.fhwa.dot.gov/4f/index.asp.
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Question 8D: Can the Programmatic Section 4(f) Evaluation and Approval
for FHWA Projects that Necessitate the Use of Historic Bridges be
applied to the replacement of a historic bridge or culvert that lacks
individual distinction but is identified as a contributing element of a
historic district that is on or eligible for listing on the NR?
Answer: Historic districts may include properties or elements that
lack individual distinction but possess sufficient integrity to
contribute to the overall significance of the district, as well as
individually distinctive features that may be separately listed or
determined eligible for the NR. All contributing properties or
elements, including identified features and their settings are
considered eligible for the NR and are therefore Section 4(f)
resources. As such, bridges in historic districts may be individually
eligible but may also be identified as contributing features within the
larger historic district. The Programmatic Section 4(f) Evaluation and
Approval for FHWA Projects that Necessitate the Use of Historic Bridges
\17\ may be applied to any historic bridge or culvert, either
contributing to a district or individually eligible. The application of
the historic bridge programmatic Section 4(f) evaluation would be
limited to the bridge replacement or rehabilitation only and must meet
all the applicability criteria stated in the programmatic Section 4(f)
evaluation. If the bridge replacement requires use, either direct or
constructive, of surrounding or adjoining property that contributes to
the significance of the historic district, the use of that property
would have to be evaluated via another form of Section 4(f) evaluation,

[[Page 42821]]

including possibly an individual evaluation.
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\17\ The Section 4(f) programmatic evaluations are available at
http://www.environment.fhwa.dot.gov/.
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Question 8E: Does Section 4(f) apply to the construction of an access
ramp providing direct vehicular ingress/egress to a public boat launch
area from an adjacent highway?
Answer: When an access ramp is constructed as part of a project to
construct a new bridge or to reconstruct, replace, repair, or alter an
existing bridge on a Federal-aid system, FHWA's longstanding policy is
that Section 4(f) approval is not necessary for the access ramp and
public boat launching area. This policy was jointly developed by FHWA
and the U.S. DOI in response to the enactment of section 147 of the
Federal-Aid Highways Act of 1976 (Pub. L. 94-280 (HR 8235) May 5,
1976). Where public boat launching areas are located in publicly owned
parks, recreational areas, or refuges otherwise protected by the
provision of Section 4(f), it would be contrary to the intent of
section 147 to search for feasible and prudent alternatives to the use
of such areas as a site for an access ramp to the public boat launching
area. Such ramps must provide direct access to a public boat launching
area adjacent to the highway. This policy only applies to the access
ramp and public boat launching area; any other use of Section 4(f)
property for the project will require Section 4(f) approval.
Question 8F: Is compliance with Section 4(f) necessary for park roads
and parkways projects funded under FHWA's Federal Lands Highway
Program, 23 U.S.C. 204?
Answer: No. Park roads and parkways projects funded under FHWA's
Federal Lands Highway Program, 23 U.S.C. 204, are expressly excepted
from Section 4(f) requirements within the Section 4(f) statute itself
and by 23 CFR 774.13(e). A park road is ``a public road, including a
bridge built primarily for pedestrian use, but with capacity for use by
emergency vehicles, that is located within, or provides access to, an
area in the National Park System with title and maintenance
responsibilities vested in the United States'' and a parkway is a road
``authorized by Act of Congress on lands to which title is vested in
the United States'' (23 U.S.C. 101(a)).
Officials With Jurisdiction; Consultation; and Decisionmaking
9. Officials With Jurisdiction
Question 9A: Who are the officials with jurisdiction for a park,
recreation area, or wildlife and waterfowl refuge and what is their
role in determining Section 4(f) applicability?
Answer: The officials with jurisdiction are defined in 23 CFR
774.17. Under that definition, there may be more than one official with
jurisdiction for the same Section 4(f) property. For public parks,
recreation areas, and wildlife and waterfowl refuges (Question 1) the
official(s) with jurisdiction are the official(s) of an agency or
agencies that own and/or administer the property in question and who
are empowered to represent the agency on matters related to the
property.
There may be instances where the agency owning or administering the
land has delegated or relinquished its authority to another agency, via
an agreement on how some of its land will function or be managed. The
FHWA will review the agreement and determine which agency has authority
on how the land functions. If the authority has been delegated or
relinquished to another agency, that agency should be contacted to
determine the purposes and significance of the property. Management
plans that address or officially designate the purposes of the property
should be reviewed as part of this determination. After consultation,
and in the absence of an official designation of purpose and function
by the officials with jurisdiction, FHWA will base its decision of
Section 4(f) applicability on an examination of the actual functions
that exist (See 23 CFR 774.11(c)).
The final decision on the applicability of Section 4(f) to a
particular property is the responsibility of FHWA. In reaching this
decision FHWA will rely on the official(s) with jurisdiction to
identify the kinds of activities and functions that take place, to
indicate which of these activities constitute the primary purpose, and
to state whether the property is significant. Documentation of the
determination of non-applicability should be included in the project
file.
Question 9B: Who are the officials with jurisdiction for historic
sites?
Answer: The officials with jurisdiction are defined in 23 CFR
774.17. For historic properties (Question 2 and 7) the official with
jurisdiction is the State Historic Preservation Officer (SHPO). If the
historic property is located on tribal land the Tribal Historic
Preservation Officer (THPO) is considered the official with
jurisdiction. If the property is located on tribal land but the tribe
has not assumed the responsibilities of the SHPO, as provided for in
the NHPA, then the representative designated by the tribe shall be
recognized as an official with jurisdiction in addition to the SHPO.
When the Advisory Council on Historic Preservation (ACHP) is involved
in the consultation concerning a property under Section 106 of the
NHPA,\18\ the ACHP will also be considered an official with
jurisdiction over that resource. For a NHL, the National Park Service
is also an official with jurisdiction over that resource.
---------------------------------------------------------------------------

\18\ 36 CFR Part 800 (http://www.achp.gov/work106.html).
---------------------------------------------------------------------------

Question 9C: Who are the officials with jurisdiction when a park,
recreation area, or refuge is also a historic site or contains historic
sites within its boundaries?
Answer: Some public parks, recreation areas, and wildlife and
waterfowl refuges are also historic properties either listed or
eligible for listing on the NR. In other cases, historic sites are
located within the property boundaries of public parks, recreation
areas, or wildlife and waterfowl refuges. When either of these
situations exists and a project alternative proposes the use of land
from the historic site there will be more than one official with
jurisdiction. For historic sites the SHPO/THPO and ACHP if
participating are officials with jurisdiction. Coordination will also
be required with the official(s) of the agency or agencies that own or
administer the property in question and who are empowered to represent
the agency on matters related to the property, such as commenting on
project impacts to the activities, features, or attributes of property
and on proposed mitigation measures. For a NHL, the National Park
Service is also an official with jurisdiction over that resource.
Question 9D: When is coordination with the U.S. DOI required?
Answer: Prior to FHWA's final approval of a Section 4(f) use,
individual Section 4(f) evaluations are provided to the U.S. DOI Office
of Environmental Compliance and Policy, which coordinates the comments
of all U.S. DOI agencies involved in the project (See 23 CFR 774.5(a)).
However, the official with jurisdiction for Section 4(f) purposes is
typically the field official charged with managing the

[[Page 42822]]

Section 4(f) property at issue. For example, the official with
jurisdiction for a project involving the use of a National Wildlife
Refuge would be the Refuge Manager. If it is not clear which individual
within the U.S. DOI is the official with jurisdiction for a particular
Section 4(f) property, U.S. DOI's Office of Environmental Compliance
and Policy should be consulted to resolve the question. The U.S. DOI
has very specific expectations regarding the submission of Section 4(f)
documents.\19\ If the Section 4(f) property is under the jurisdiction
of the U.S. Forest Service, the Department of Agriculture would be
contacted for its review. The final authority on the content and format
of Section 4(f) documents is FHWA's, as specified in 23 CFR Part 774,
this Section 4(f) Policy Paper and the Technical Advisory, T 6640.8A,
Guidance for Preparing and Processing of Environmental and Section 4(f)
Documents.
---------------------------------------------------------------------------

\19\ http://www.doi.gov/pmb/oepc/nrm/upload/Environmental_Review_Process.pdf.
---------------------------------------------------------------------------

It is not necessary to coordinate project specific applications of
existing programmatic Section 4(f) evaluations with the U.S. DOI unless
the U.S. DOI owns or has administrative oversight over the Section 4(f)
property involved. In these cases, FHWA will need written concurrence
from the U.S. DOI as the official with jurisdiction as stipulated in
the applicable programmatic Section 4(f) evaluation. Consultation with
the U.S. DOI was conducted during the development of all the existing
programmatic Section 4(f) evaluations. Development of any new
programmatic Section 4(f) evaluations would also require coordination
with the U.S. DOI before they are made available for use (See 23 CFR
774.3(d)(2)).
Similarly, it is not necessary to conduct project-level
coordination with the U.S. DOI when processing de minimis impact
determinations unless the U.S. DOI has administrative oversight over
the public park, recreation area, or wildlife and waterfowl refuge
involved. In these situations, FHWA must obtain concurrence from the
U.S. DOI as the official having jurisdiction that there is no adverse
effect to the activities, features, or attributes of the property (See
23 CFR 774.5(b)). When a de minimis impact determination is anticipated
for a historic site owned or administered by the U.S. DOI, and when the
historic site is a NHL, the U.S. DOI will have the opportunity to
participate during the Section 106 consultation as a consulting party
(See Questions 11 through 13 for further guidance on de minimis impact
determinations).
For situations in which the Section 4(f) property is encumbered
with a Federal interest, for example as a result of a U.S. DOI grant,
the answer to Question 1D or Question 31 may apply.
Question 9E: What is the official status of the Handbook on
Departmental Reviews of Section 4(f) Evaluations, originally issued in
February 2002 (and any subsequent revisions) by the U.S. DOI Office of
Environmental Policy and Compliance?
Answer: The U.S. DOI Handbook \20\ is intended to provide guidance
to the National Park Service (NPS), the U.S. Fish and Wildlife Service
and other designated lead bureaus in the preparation of U.S. DOI
comments on the Section 4(f) evaluations prepared by the U.S. DOT
pursuant to the authority granted in the Section 4(f) statute. The
Handbook is an official U.S. DOI document and includes departmental
opinion related to the applicability of Section 4(f) to lands for which
they have jurisdiction and authority. The Section 4(f) statute requires
U.S. DOT to consult and cooperate with the U.S. DOI as well as the
Departments of Agriculture and Housing and Urban Development, as
appropriate in Section 4(f) program and project related matters. The
FHWA values the U.S. DOI's opinions related to the resources under
their jurisdiction, and while the Handbook is a resource which FHWA may
consider, it is not the final authority on Section 4(f) determinations.
---------------------------------------------------------------------------

\20\ http://www.doi.gov/oepc/handbook.html.
---------------------------------------------------------------------------

Official FHWA policy on the applicability of Section 4(f) to lands
that fall within the jurisdiction of the U.S. DOI is contained within
23 CFR part 774 and this Section 4(f) Policy Paper. While FHWA is not
legally bound by the guidance contained within the Handbook or the
comments provided by the U.S. DOI or lead bureaus, every attempt should
be made to reach agreement during project consultation. In some
situations, one of the bureaus may be an official with jurisdiction.
When unresolved conflicts arise during coordination with the U.S. DOI
related to the applicability of Section 4(f) to certain types of
property, it might be necessary for the Division Office to contact the
FHWA Headquarters Office of Project Development and Environmental
Review for assistance.
Question 9F: Section 4(f) also requires cooperation and consultation
with the U.S. Department of Agriculture (USDA) and the U.S. Department
of Housing and Urban Development (HUD). When is coordination with the
USDA or HUD on a Section 4(f) matter appropriate?
Answer: Many national forests under the jurisdiction of the U.S.
Forest Service of the USDA serve as multiple-use land holdings as
described in Question 4. If the project uses land of a national forest,
coordination with the USDA as the official with jurisdiction over the
resource would be appropriate in determining the purposes served by the
land holding and the resulting extent of Section 4(f) applicability to
the land holding. HUD would be involved only in cases where HUD had an
interest in a Section 4(f) property.
Question 9G: Who makes Section 4(f) decisions and de minimis impact
determinations?
Answer: The FHWA Division Administrator is the responsible official
for all Section 4(f) applicability decisions, approvals, and de minimis
impact determinations for Federal-aid projects. The FHWA Federal Lands
Highway Division Engineer has this authority for Federal Lands
projects. Coordination with the FHWA Headquarters or the FHWA Office of
the Chief Counsel is not required for routine de minimis impact
determinations but is recommended where assistance is needed for
controversial projects or complex situations. It will be necessary for
FHWA to consult and coordinate with the official(s) with jurisdiction
as discussed above in making determinations of applicability and in
approving the use of Section 4(f) property. When a programmatic Section
4(f) evaluation is relied upon to satisfy Section 4(f), the
consultation requirements and approval process for the specific
programmatic evaluation must be followed (See 23 CFR 774.3(d)).
10. Section 4(f) Evaluations for Tiered Projects
Question 10: How is Section 4(f) handled in tiered NEPA documents?
Answer: The FHWA must comply with 23 CFR 774.7(e) when tiered NEPA
documents are used. In a tiered Environmental Impact Statement (EIS),
the project development process moves from a broad scale examination at
the first-tier stage to a more site specific evaluation in the second-
tier stage. During the first-tier stage the detailed information
necessary to complete the Section 4(f) approval may not be available.
Even so, this does not relieve

[[Page 42823]]

the FHWA from its responsibility to determine the possibility of making
de minimis impact determinations or to consider alternatives that avoid
the use of Section 4(f) properties during the first-tier stage. This
analysis and documentation should address potential uses of Section
4(f) property and whether those uses could have a bearing on the
decision to be made during this tier.
If sufficient information is available, a preliminary Section 4(f)
approval may be made at the first-tier stage as to whether the impacts
resulting from the use of a Section 4(f) property are de minimis or
whether there are feasible and prudent avoidance alternatives. This
preliminary approval must include all possible planning to minimize
harm to the extent that the level of detail available at this stage
allows (23 CFR 774.7(e)(1)). This planning may be limited to a
commitment to ensure that opportunities to minimize harm at subsequent
stages in the project development process have not been precluded by
decisions made at the first-tier stage. Any preliminary Section 4(f)
approvals must be incorporated into the first-tier EIS (23 CFR
774.7(e)(1)).
If sufficient information is unavailable during the first-tier
stage, then the EIS may be completed without any preliminary Section
4(f) approvals. The documentation should state why no preliminary
approval is possible during the first-tier stage and clearly explain
the process that will be followed to complete Section 4(f) evaluations
during subsequent tiers. The extent to which a Section 4(f) approval
(preliminary or final) anticipated to be made in a subsequent tier may
have an effect on any decision made during the first-tier stage should
be discussed. Schedules to complete Section 4(f) evaluations, if
available, should also be reported.
Preliminary first-tier Section 4(f) approvals will be finalized in
the second-tier CE, EA, final EIS, ROD or FONSI, as appropriate (See 23
CFR 774.7(e)(2)). If no new Section 4(f) use, other than a de minimis
impact, is identified in the second-tier study and if all possible
planning to minimize harm has occurred, then the second-tier Section
4(f) approval may finalize the preliminary approval by reference to the
first-tier documentation. Re-evaluation of the preliminary Section 4(f)
approval is only needed to the extent that new or more detailed
information available at the second-tier stage raises new Section 4(f)
concerns not already considered.
De Minimis Impact Determinations
11. De minimis Impact Determinations for Parks, Recreation Areas, and
Wildlife and Waterfowl Refuges
Question 11A: What constitutes a de minimis impact with respect to a
park, recreation area, or wildlife and waterfowl refuge?
Answer: An impact to a public park, recreation area, or wildlife
and waterfowl refuge may be determined to be de minimis if the
transportation use of the Section 4(f) property, including
incorporation of any measure(s) to minimize harm (such as any
avoidance, minimization, mitigation, or enhancement measures), does not
adversely affect the activities, features, or attributes that qualify
the resource for protection under Section 4(f). Language included in
the SAFETEA-LU Conference Report provides additional insight on the
meaning of de minimis impact:

The purpose of the language is to clarify that the portions of
the resource important to protect, such as playground equipment at a
public park, should be distinguished from areas such as parking
facilities. While a minor but adverse effect on the use of
playground equipment should not be considered a de minimis impact
under Section 4(f), encroachment on the parking lot may be deemed de
minimis, as long as the public's ability to access and use the site
is not reduced.

(Conference Report of the Committee of Conference on H.R. 3, Report
109-203, page 1057).
This simple example helps to distinguish the activities, features,
or attributes of a Section 4(f) property that are important to protect
from those which can be used without resulting in adverse effects.
Playground equipment in a public park may be central to the
recreational value of the park that Section 4(f) is designed to
protect. The conference report makes it clear that when impacts are
proposed to playground equipment or other essential features, a de
minimis impact finding will at a minimum require a commitment to
replace the equipment with similar or better equipment at a time and in
a location that results in no adverse effect to the recreational
activity. A parking lot encroachment or other similar type of land use,
on the other hand, could result in a de minimis impact with minimal
mitigation, as long as there are no adverse effects on public access
and the official(s) with jurisdiction agree.
The impacts of a transportation project on a park, recreation area,
or wildlife and waterfowl refuge that qualifies for Section 4(f)
protection may be determined to be de minimis if:
(1) The transportation use of the Section 4(f) property, together
with any impact avoidance, minimization, and mitigation or enhancement
measures incorporated into the project, does not adversely affect the
activities, features, or attributes that qualify the resource for
protection under Section 4(f);
(2) The public has been afforded an opportunity to review and
comment on the effects of the project on the protected activities,
features, or attributes of the Section 4(f) property; and
(3) The official(s) with jurisdiction over the property, after
being informed of the public comments and FHWA's intent to make the de
minimis impact finding, concur in writing that the project will not
adversely affect the activities, features, or attributes that qualify
the property for protection under Section 4(f).
(See 23 CFR 774.5(b)(2), 23 CFR 774.17). The concurrence of the
official(s) with jurisdiction that the protected activities, features,
or attributes of the resource are not adversely affected must be in
writing (23 CFR 774.5(b)(2)(ii)). The written concurrence can be in the
form of a signed letter on agency letterhead, signatures in concurrence
blocks on transportation agency documents, agreements provided via
email or other method deemed acceptable by the FHWA Division
Administrator. Obtaining these agreements in writing and retaining them
in the project file is consistent with effective practices related to
preparing project administrative records.
Question 11B: What role does mitigation play in the de minimis impact
finding?
Answer: De minimis impact determinations are based on the degree of
impact after the inclusion of any measure(s) to minimize harm, (such as
any avoidance, minimization, mitigation, or enhancement measures) to
address the Section 4(f) use (i.e., net impact). The expected positive
effects of any measures included in a project to mitigate the adverse
effects to a Section 4(f) property must be taken into account when
determining whether the impact is de minimis (See 23 CFR 774.3(b)). The
purpose of taking such measures into account is to encourage the
incorporation of Section 4(f) protective measures as part of the
project. De minimis impact findings must be expressly conditioned upon
the implementation of any measures that were relied upon to reduce the
impact to a de minimis level (See 23 CFR

[[Page 42824]]

774.7(b)). The implementation of such measures will become the
responsibility of the project sponsor with FHWA oversight (See 23 CFR
771.109(b)).
Question 11C: What constitutes compliance with the public notice,
review and comment requirements for de minimis impact findings for
parks, recreation areas or wildlife and waterfowl refuges?
Answer: Information supporting a de minimis impact finding for a
park, recreation area or refuge should be included in the NEPA document
prepared for the project. This information includes, at a minimum, a
description of the involved Section 4(f) property(ies), use and
impact(s) to the resources and any measure(s) to minimize harm (such as
any avoidance, minimization, mitigation, or enhancement measures) that
are included in the project as part of the de minimis impact finding.
The public involvement requirements associated with specific NEPA
document and process will, in most cases, be sufficient to satisfy the
public notice and comment requirements for the de minimis impact
finding (See 23 CFR 774.5(b)(2)).
In general, the public notice and comment process related to de
minimis impact findings will be accomplished through the State DOT's
approved public involvement process (See 23 CFR 771.111(h)(1)). For
those actions that do not routinely require public review and comment
(e.g., certain categorical exclusions and re-evaluations) but for which
a de minimis impact finding will be made, a separate public notice and
opportunity for review and comment will be necessary. In these cases,
appropriate public involvement should be based on the specifics of the
situation and commensurate with the type and location of the Section
4(f) property, the impacts, and public interest. Possible methods of
public involvement are many and include newspaper advertisements,
public meetings, public hearings, notices posted on bulletin boards
(for properties open to the public), project Web sites, newsletters,
and placement of notices or documents at public libraries. All comments
received and responses thereto, should be documented in the same manner
that other comments on the proposed action would be incorporated in the
project file. Where public involvement was initiated solely for the
purpose of a de minimis impact finding, responses or replies to the
public comments may not be required, depending on the substantive
nature of the comments. All comments and responses should be
documented, as appropriate, in the project file.
12. De minimis Impact Determinations on Historic Sites
Question 12A: What are the requirements for de minimis impact on a
historic site?
Answer: A finding of de minimis impact on a historic site may be
made when:
(1) FHWA has considered the views of any consulting parties
participating in the consultation required by Section 106 of the NHPA,
including the Secretary of the Interior or his representative if the
property is a NHL;
(6) The SHPO/THPO, and Advisory Council on Historic Preservation
(ACHP) if participating in the Section 106 consultation, are informed
of FHWA's intent to make a de minimis impact finding based on their
written concurrence in the Section 106 determination of ``no adverse
effect;'' and
(7) The Section 106 process results in a determination of ``no
adverse effect'' with the written concurrence of the SHPO/THPO, and
ACHP if participating in the Section 106 consultation.\21\
---------------------------------------------------------------------------

\21\ Although the Section 4(f) statute and regulations also
provide for a de minimis impact determination in the situation where
there is a use of a historic site resulting in a Section 106
determination of no historic properties affected, FHWA has not yet
encountered any such situation in practice. If such situation
arises, a de minimis impact determination would be appropriate.
---------------------------------------------------------------------------

(See 23 CFR 774.5(b)(1) and the definition of de minimis impact in
23 CFR 774.17.)
Question 12B: How should the concurrence of the SHPO/THPO, and ACHP if
participating in the Section 106 determination of effect, be documented
when the concurrence will be the basis for a de minimis impact finding?
Answer: Section 4(f) requires that the SHPO/THPO, and ACHP if
participating, must concur in writing in the Section 106 determination
of no adverse effect (See 23 CFR 774.5(b)(1)(ii)). The request for
concurrence in the Section 106 determination should include a statement
informing the SHPO/THPO, and ACHP if participating, that FHWA or FTA
intends to make a de minimis impact finding based upon their
concurrence in the Section 106 determination.
Under the Section 106 regulation, if a SHPO/THPO does not respond
within a specified time frame FHWA may move forward to the next step of
the Section 106 process but Section 4(f) explicitly requires their
written concurrence (See 23 CFR 774.5(b)(1)(ii)). It is therefore
recommended that transportation officials share this guidance with the
SHPOs and THPOs in their States so that these officials fully
understand the implication of their concurrence in the Section 106
determinations and the reason for requesting written concurrence.
Question 12C: For historic sites, will a separate public review process
be necessary for the determination of a de minimis impact?
Answer: No. The FHWA will consult with the parties participating in
the Section 106 process but is not required to provide additional
public notice or provide additional opportunity for review and comment.
Documentation of consulting party involvement is required (See 23 CFR
774.5(b) and 774.7(b)). In addition, for projects requiring the
preparation and distribution of a NEPA document, the information
supporting a de minimis impact finding will be included in the NEPA
documentation and the public will be afforded an opportunity to review
and comment during the formal NEPA process.
Question 12D: Certain Section 106 programmatic agreements (PAs) allow
the lead agency to assume the concurrence of the SHPO/THPO in the
determination of no adverse effect or no historic properties affected
if a response to a request for concurrence is not received within the
time period specified in the PA. Does such concurrence through non-
response, in accordance with a written and signed Section 106 PA,
constitute the written concurrence needed to make a de minimis impact
finding?
Answer: In accordance with the provisions of a formal Section 106
programmatic agreement (PA), if the SHPO/THPO does not respond to a
request for concurrence in the Section 106 determination within a
specified time frame, the non-response together with the written PA,
will be considered written concurrence in the Section 106 determination
that will be the basis for the de minimis impact finding by FHWA. The
FHWA must inform the SHPO/THPO who are parties to such PAs, in writing,
that a non-response which is treated as a concurrence in a no adverse
effect or no historic properties affected determination will also be
treated as the written concurrence for purposes of the FHWA de minimis
impact finding (See 23 CFR 774.5(b)(1)(ii)). It is recommended that
this understanding of the parties be documented via formal
correspondence

[[Page 42825]]

or other written means and appended to the existing PA. There is no
need to amend the PA itself.
13. Other De minimis Impact Considerations
Question 13A: Are de minimis impact findings limited to any particular
type of project or National Environmental Policy Act (NEPA) document?
Answer: No, the de minimis impact criteria may be applied to any
project, as appropriate, regardless of the type of environmental
document required by the NEPA process as described in the FHWA
Environmental Impact and Related Procedures (See 23 CFR 771.115).
Question 13B: What effect does the de minimis impact provision have on
the application of the existing FHWA nationwide programmatic Section
4(f) evaluations?
Answer: None. Existing FHWA programmatic Section 4(f) evaluations
\22\ remain in effect and may be applied, as appropriate, to the use of
Section 4(f) property by a highway project.
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\22\ http://environment.fhwa.dot.gov/projdev/4fnspeval.asp.
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Question 13C: Can a de minimis impact finding be made for a project as
a whole, when multiple Section 4(f) properties are involved?
Answer: No, when multiple Section 4(f) properties are present in
the study area and potentially used by a transportation project, de
minimis impact findings must be made for the individual Section 4(f)
properties because 23 CFR 774.3 requires an approval to use Section
4(f) property. The impacts to Section 4(f) properties and any impact
avoidance, minimization, and mitigation or enhancement measures must be
considered on an individual resource basis and de minimis impact
findings made individually for each Section 4(f) property. When there
are multiple resources for which de minimis impact findings are
appropriate, however, the procedural requirements of Section 4(f) can
and should be completed in a single process, document and circulation,
so long as it is clear that distinct determinations are being made.
Also in these cases, the written concurrence of the official(s) with
jurisdiction may be provided for the project as a whole, so as long as
the de minimis impacts findings have been made on an individual
resource basis. For example, a no adverse effect determination made on
an undertaking as a whole may be used to support individual de minimis
impact findings provided individual historic sites are clearly
identified in the Section 106 documentation.
Additional Example and Other Considerations
14. School Playgrounds
Question 14: Are publicly owned school playgrounds subject to the
requirements of Section 4(f)?
Answer: While the primary purpose of public school playgrounds is
generally for structured physical education classes and recreation for
students, these properties may also serve significant public
recreational purposes and therefore may be subject to Section 4(f)
requirements. When a public school playground serves only school
activities and functions, the playground is not subject to Section
4(f). When a public school playground is open to the public and serves
either organized or substantial walk-on recreational purposes that are
determined to be significant (See Question 1), it will be subject to
the requirements of Section 4(f). The actual function of the playground
is the determining factor in these circumstances. Documentation should
be obtained from the officials with jurisdiction over the facility
stating whether or not the playground is of local significance for
recreational purposes.
There may be more than one official with jurisdiction over a school
playground. A school official is considered to be the official with
jurisdiction of the land during school activities. However, in some
cases a school board may have authorized another public agency (e.g.,
the city park and recreation department) to control the facilities
after school hours. In such cases, the public agency with authority to
control the playground would be considered an official with
jurisdiction with regard to any after-hours use of the playground. The
FHWA is responsible for determining which official or officials have
jurisdiction over a playground.
The term playground refers to the area of the school property
developed and/or used for public park or recreation purposes such as
baseball diamonds, soccer fields, tennis courts, track and field
facilities, and other features such as jungle gyms or swing sets. This
can also include open space or practice fields if those areas serve a
park or recreation function. Section 4(f) would apply to the playground
areas only and not the entire campus, unless the school and campus are
also significant historic sites.
15. Trails and Shared Use Paths
Question 15A: Do the requirements of Section 4(f) apply to shared use
paths or similar facilities?
Answer: FHWA must comply with 23 CFR 774.13(f) when determining if
a Section 4(f) approval is necessary for the use of a trail, path,
bikeway, or sidewalk. If the publicly owned facility is primarily used
for transportation and is an integral part of the local transportation
system, the requirements of Section 4(f) would not apply since it is
not a recreational area. Section 4(f) would apply to a publicly owned,
shared use path or similar facility (or portion thereof) designated or
functioning primarily for recreation, unless the official(s) with
jurisdiction determines that it is not significant for such purpose.
During early consultation, it should be determined whether or not a
management plan exists that addresses the primary purpose of the
facility in question. If the exceptions in 23 CFR 774.13(f) and (g) do
not apply, the utilization of the Programmatic Section 4(f) Evaluation
for Independent Bikeway or Walkway Construction Projects should be
considered if the facility is within a park or recreation area. 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 shared use paths and similar facilities.\23\
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\23\ Title 23, Section 109(m) states: ``The Secretary shall not
approve any project or take any regulatory action under this title
that will result in the severance of an existing major route or have
significant adverse impact on the safety for non- motorized
transportation traffic and light motorcycles, unless such project or
regulatory action provides for a reasonable alternate route or such
a route exists.''
---------------------------------------------------------------------------

Question 15B: The National Trails System Act permits the designation of
scenic, historic, and recreation trails. Are these trails or other
designated scenic or recreation trails on publicly owned land subject
to the requirements of Section 4(f)?
Answer: FHWA must comply with 23 CFR 774.13(f) when determining if
a Section 4(f) approval is necessary for the use of a trail, path,
bikeway, or sidewalk. National Scenic Trails (other than the
Continental Divide National Scenic Trail) 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.
The Continental Divide National Scenic Trail and National Historic
Trails are treated differently. Public Law 95-

[[Page 42826]]

625 provides that ``except for designated protected components of the
trail, no land or site located along a designated National Historic
Trail or along the Continental Divide National Scenic Trail shall be
subject to the provisions of [Section 4(f)] unless such land or site is
deemed to be of historical significance under the appropriate
historical criteria such as those for the [NR].'' FHWA interprets this
to mean that while the Continental Divide National Scenic Trail and the
National Historic Trails themselves are exempt from Section 4(f), trail
segments (including similar components such as trail buffers or other
adjacent sites that were acquired to complement the trails) that are on
or eligible for the NR are subject to Section 4(f) (See 23 CFR
774.13(f)(2)).
Question 15C: Are shared use paths, bikeways, or designated scenic or
recreational trails on highway rights-of-way subject to the
requirements of Section 4(f)?
Answer: FHWA must comply with 23 CFR 774.13(f) when determining if
a Section 4(f) approval is necessary for the use of a trail, path,
bikeway, or sidewalk. If a 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 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. In this regard, it would be helpful if all future
designations, including those made under the National Trails System
Act, describe the location of the trail only as generally in the right-
of- way.
Question 15D: Are trails on privately owned land, including land under
public easement and designated as scenic or recreational trails subject
to the requirements of Section 4(f)?
Answer: FHWA must comply with 23 CFR 774.13(f) when determining if
a Section 4(f) approval is necessary for the use of a trail, path,
bikeway, or sidewalk. Section 4(f) generally does not apply to trails
on privately owned land. Section 4(f) could apply if an existing public
easement permits public access for recreational purposes. In any case,
it is FHWA's policy that every reasonable effort should be made to
maintain the continuity of existing and designated trails.
Question 15E: Does Section 4(f) apply to trail-related projects funded
under the Recreational Trails Program (RTP)?
Answer: No, projects funded under the Recreational Trails Program
(RTP)\24\ are exempt from the requirements of Section 4(f) by
statute.\25\ The exemption is limited to Section 4(f) and does not
apply to other environmental requirements, such as NEPA or the NHPA.
---------------------------------------------------------------------------

\24\ More information on the Recreational Trails Program is
available at www.fhwa.dot.gov/environment/rectrails/.
\25\ 23 U.S.C. 206(h)(2) Recreational purpose.--A project funded
under this section is intended to enhance recreational opportunity
and is not subject to section 138 of this title or section 303 of
title 49.
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16. User or Entrance Fees
Question 16: Does the charging of an entry or user fee affect Section
4(f) eligibility?
Answer: Many eligible Section 4(f) properties require a fee to
enter or use the facility such as State Parks, National Parks, publicly
owned ski areas, historic sites and public golf courses. The assessment
of a user fee is generally related to the operation and maintenance of
the facility and does not in and of itself negate the property's status
as a Section 4(f) property. Therefore, it does not matter in the
determination of Section 4(f) applicability whether or not a fee is
charged, as long as the other criteria are satisfied.
Consider a public golf course as an example. Greens-fees are
usually if not always required (Question 18A) and these resources are
considered Section 4(f) properties when they are open to the public and
determined to be significant. The same rationale should be applied to
other Section 4(f) properties in which an entrance or user fee is
required.
17. Transportation Enhancement Projects
Question 17A: How is Section 4(f) applied to transportation enhancement
activity projects? \26\
---------------------------------------------------------------------------

\26\ For more information see the FHWA Final Guidance on
Transportation Enhancement Activities; December 17, 1999, and the TE
Program Related Questions & Answers; August 2002, found at the
Transportation Enhancement Web site (www.fhwa.dot.gov/environment/te/index.htm).
---------------------------------------------------------------------------

Answer: FHWA must comply with 23 CFR 774.13(g) when determining if
a Section 4(f) approval is necessary for a use by a transportation
enhancement project or a mitigation activity. A transportation
enhancement activity (TEA) is one of the specific types of activities
set forth by statute at 23 U.S.C. 101(a)(35). TEAs often involve the
enhancement of an activity, feature or attribute on property that
qualifies as a Section 4(f) property. In most cases, such work would be
covered by the exception in 23 CFR 774.13(g) when the work is solely
for the purpose of preserving or enhancing an activity, feature or
attribute that qualified the property for Section 4(f) protection. The
official(s) with jurisdiction over the Section 4(f) property must
concur in writing with this assessment. For a use of Section 4(f)
property to occur in conjunction with a TEA, there must be a
transportation use of land from an existing Section 4(f) property. In
other words, the State DOT or other applicant as defined in 23 CFR
774.17 must acquire land from a Section 4(f) property and convert its
function from park, recreation, refuge or historic purposes to a
transportation purpose.
Many TEA-funded activities will occur on land that remains owned by
a non-transportation entity (such as a local or State parks and
recreation agency). An example would be a TEA proposed to construct a
new bicycle/pedestrian path within a public park or to reconstruct an
already existing bicycle/pedestrian path within a public park. Though
related to surface transportation, this type of project is primarily
intended to enhance the park. Either scenario would qualify as an
exception for Section 4(f) approval assuming the official(s) with
jurisdiction agree in writing that the TEA provides for enhancement of
the bicycle/pedestrian activities within the park.
A variation of the above example is local public agency that
proposes a TEA for construction of a new bicycle/pedestrian facility
that requires the acquisition of land from a public park. The purpose
of the project is to promote a non-motorized mode of travel for
commuters even though some recreational use of the facility is likely
to occur. This TEA requires a transfer of land from the parks and
recreation agency to the local transportation authority for ultimate
operation and maintenance of the newly constructed bicycle/pedestrian
facility. Since this TEA would involve the permanent incorporation of
Section 4(f) land into a transportation facility, there is a use of
Section 4(f) land and the appropriate Section 4(f) evaluation and
documentation would be required. In this instance, the Programmatic
Section 4(f) Evaluation for Independent Bikeway or Walkway Construction
Projects \27\

[[Page 42827]]

would likely apply depending on the particular circumstances of the
project.
---------------------------------------------------------------------------

\27\ http://www.environment.fhwa.dot.gov/projdev/4fbikeways.asp.
---------------------------------------------------------------------------

Other TEAs that involve acquisition of scenic or historic
easements, or historic sites, often result in ultimate ownership and
management of the facility by a non-transportation entity (such as a
tourism bureau or historical society). An example would be the
acquisition and/or restoration of a historic railroad station for
establishment of a museum operated by a historical society. Even though
Federal-aid transportation funds were used to acquire a historic
building, a non-transportation entity ultimately will own and manage
it. Accordingly, this TEA would qualify as an exception for Section
4(f) approval.
Section 106 still applies for any TEA involving a historic site on
or eligible for listing on the NR. Please refer to the Nationwide
Programmatic Agreement for Implementation of Transportation Enhancement
Activities \28\ that was issued in 1997 for more details.
---------------------------------------------------------------------------

\28\ http://www.fhwa.dot.gov/environment/te/gmemo_program.htm.
---------------------------------------------------------------------------

For other complex or complicated situations involving TEA projects,
it is recommended that the FHWA Division Office contact the
Headquarters Office of Project Development and Environmental Review,
the Resource Center Environment Technical Services Team, or the Office
of the Chief Counsel for assistance.
Question 17B: Is the exception in 23 CFR 774.13(g) limited solely to
work that is funded as a TEA pursuant to 23 U.S.C. 101(a)(35)?
Answer: No. The exception cited in 23 CFR 774.13(g) refers to
TEAs--though the term ``project'' is used instead of ``activity''--and
to mitigation activities (See Question 29 regarding mitigation
activities). The discussion in the corresponding section of the
preamble to the regulation involves TEAs within the context of 23
U.S.C. 101(a)(35), but does not explicitly limit the exception to TEAs
funded via the 10% set aside of Surface Transportation Program funds
(See 73 FR 13368, March 12, 2008). If proposed work very closely
resembles a TEA but is not proposed for funding as a TEA, there are
several options to consider.
If the proposed work could be characterized as a project mitigation
feature, then the exception in 23 CFR 774.13(g) would apply without
further consideration contingent upon the official(s) with jurisdiction
concurring in writing that the work is solely for the purpose of
preserving or enhancing an activity, feature or attribute that
qualified the property for Section 4(f) protection.
In addition, the introductory paragraph of this section of the
regulation indicates that the ``exceptions include, but are not limited
to'' those listed in the ensuing paragraphs. If proposed work resembles
a TEA, avoidance of the property could be characterized as being
inconsistent with the preservation purpose of the Section 4(f) statute.
Uses of Section 4(f) property under the statute have long been
considered to include only adverse uses that harm or diminish the
resource that the statute seeks to protect. Further, this exception is
limited to situations in which the official(s) with jurisdiction over
the Section 4(f) property agrees that the use will either preserve or
enhance an activity, feature, or attribute of the property that
qualifies it for protection under Section 4(f). Work similar to TEAs
may be very carefully evaluated on a case-by-case basis to determine if
an exception for Section 4(f) approval might be justified consistent
with the preservation purpose of the statute and 23 CFR 774.13(g).
If a Section 4(f) use is identified, under any scenario, the
potential for complying with Section 4(f) via a de minimis impact
finding or utilization of an approved programmatic Section 4(f)
evaluation should be considered.
Question 17C: Is it possible for a TEA to create a Section 4(f)
property?
Answer: Yes. TEA projects that are funded under TEA categories (A)
Provision of facilities for pedestrians and bicycles and (H)
Preservation of abandoned railway corridors (including the conversion
and use of the corridors for pedestrian or bicycle trails) could create
a new Section 4(f) resource. If a future Federal-aid highway project
were to use the property, the fact that the resource was created with
TEA funding would not preclude the application of Section 4(f).
18. Golf Courses
Question 18A: Are public golf courses subject to Section 4(f), even
when fees and reservations are required?
Answer: Section 4(f) applies to golf courses that are owned,
operated and managed by a public agency for the primary purpose of
public recreation and determined to be significant. Section 4(f) does
not apply to privately owned and operated golf courses even when they
are open to the general public. Golf courses that are owned by a public
agency but managed and operated by a private entity may still be
subject to Section 4(f) requirements depending on the structure of the
agreement.
The fact that greens-fees (Question 16) or reservations (tee times)
are required by the facility does not alter the Section 4(f)
applicability, as long as the standards of public ownership, public
access and significance are met.
Some golf courses are also historic sites. If a golf course is on
or eligible for listing in the NR, then the Section 4(f) requirement
for public ownership and public access will not apply.
Question 18B: Are military golf courses subject to the requirements of
Section 4(f)?
Answer: Military golf courses are publicly owned (by the Federal
Government) but are not typically open to the public at large. Because
the recreational use of these facilities is limited to active duty and
retired military personnel, family, and guests they are not considered
to be public recreational areas and are not subject to the requirements
of Section 4(f) (See Question 1D), unless they are significant historic
sites (Question 2A).
19. Museums, Aquariums, and Zoos
Question 19: Does Section 4(f) apply to museums, aquariums and zoos?
Answer: Publicly owned museums, aquariums, and zoos are not
normally considered parks, recreational areas, or wildlife and
waterfowl refuges and are therefore not subject to Section 4(f), unless
they are significant historic sites (Question 2A).
Publicly owned facilities such as museums, aquariums or zoos may
provide additional park or recreational opportunities and will need to
be evaluated on a case-by-case basis to determine if the primary
purpose of the resource is to serve as a significant park or recreation
area. To the extent that zoos are considered to be significant park or
recreational areas, or are significant historic sites they will be
treated as Section 4(f) properties.
20. Fairgrounds
Question 20: Are publicly owned fairgrounds subject to the requirements
of Section 4(f)?
Answer: Section 4(f) is not applicable to publicly owned
fairgrounds that function primarily for commercial purposes (e.g. stock
car races, horse racing, county or state fairs), rather than as park or
recreation areas. When fairgrounds are open to the public and function
primarily for public recreation other than an annual fair, Section 4(f)
applies only to those portions of land determined significant for park
or

[[Page 42828]]

recreational purposes (See Question 1A), unless they are significant
historic sites (Question 2A).
21. Bodies of Water
Question 21A: How does the Section 4(f) apply to publicly owned lakes
and rivers?
Answer: 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). Of
course, Section 4(f) would also apply to lakes and rivers, or portions
thereof, which are contained within the boundaries of a park,
recreation area, refuge, or historic site to which Section 4(f)
otherwise applies.
Question 21B: Are Wild and Scenic Rivers (WSR) subject to Section 4(f)?
Answer: FHWA must comply with 23 CFR 774.11(g) when determining if
there is a use of a WSR. The National Wild and Scenic Rivers Act (WSRA)
(16 U.S.C. 1271 et seq. and 36 CFR 297.3) identifies those rivers in
the United States which are designated as part of the WSR System. A WSR
is defined as a river and the adjacent area within the boundaries of a
component of the National Wild and Scenic Rivers System (National
System). WSRs may be designated by Congress or, if certain requirements
are met, the Secretary of the Interior. Each river is administered by
either a Federal or state agency. Four Federal agencies have primary
responsibility for the National Wild and Scenic Rivers System,
specifically the Forest Service, the National Park Service, the Fish
and Wildlife Service and the Bureau of Land Management.
Within this 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. In determining whether Section 4(f) is applicable to these
rivers, FHWA should consult with the official with jurisdiction
(Question 21D) to determine how the river is designated, how the river
is being used and examine the management plan over that portion of the
river. If the river is publicly owned and designated a recreational
river under the WSRA or is a recreation resource under a management
plan, then it would be a Section 4(f) property. Conversely, if a river
is included in the System and designated as wild but is not being used
as or designated under a management plan as a park, recreation area,
wildlife and waterfowl refuge and is not a historic site, then Section
4(f) would not apply.
Significant publicly owned public parks, recreation areas, or
wildlife and waterfowl refuges and historic sites (on or eligible of
the NR) in a WSR corridor are subject to Section 4(f). Other lands in
WSR corridors managed for multiple purposes may or may not be subject
to Section 4(f) requirements, depending on the manner in which they are
administered by the managing agency. Close examination of the
management plan (as required by the WSRA) prior to any use of these
lands for transportation purposes is necessary. Section 4(f) would
apply to those portions of the land designated in a management plan for
recreation or other Section 4(f) purposes as discussed above. Where the
management plan does not identify specific functions, or where there is
no plan, FHWA should consult further with the official with
jurisdiction (Question 21D) prior to making the Section 4(f)
determination. Privately owned lands in a WSR corridor are not subject
to Section 4(f), except for significant historic and archeological
sites when important for preservation in place (Question 3).
Question 21C: Does Section 4(f) apply to potential WSR corridors and
adjoining lands under study (pursuant to Section 5(a) of the WSRA)?
Answer: No, Section 4(f) does not apply to potential WSRs and
adjoining lands. In these cases, Section 4(f) would apply only to
existing significant publicly owned public parks, recreation areas,
refuges, or significant historic sites in the potential river corridor.
It must be noted, however, that such rivers are protected under Section
12(a) of the WSRA,\29\ which directs all Federal departments and
agencies to protect river values and further recognizes that particular
attention should be given to timber harvesting, road construction, and
similar activities, which might be contrary to the purposes of this
Act.
---------------------------------------------------------------------------

\29\ ``The Secretary of the Interior, the Secretary of
Agriculture, and the head of any other Federal department or agency
having jurisdiction over any lands which include, border upon, or
are adjacent to, any river included within the National Wild and
Scenic Rivers System or under consideration for such inclusion, in
accordance with section 2(a)(ii), 3(a), or 5(a), shall take such
action respecting management policies, regulations, contracts,
plans, affecting such lands, following the date of enactment of this
sentence, as may be necessary to protect such rivers in accordance
with the purposes of this Act.''
---------------------------------------------------------------------------

Question 21D: Who are the Officials with Jurisdiction for WSRs?
Answer: The definition of officials with jurisdiction is located in
23 CFR 774.17. For those portions of a WSR to which Section 4(f)
applies, the official(s) with jurisdiction are the official(s) of the
Federal agency or agencies that own or administer the affected portion
of the river corridor in question. For State administered, federally
designated rivers \30\ the officials with jurisdiction include both the
State agency designated by the respective Governor and the Secretary of
the Interior.
---------------------------------------------------------------------------

\30\ Section 2(a)(ii) of the WSRA, 16 U.S.C. 1273(a)(ii)).
---------------------------------------------------------------------------

22. Scenic Byways
Question 22: How does Section 4(f) apply to scenic byways?
Answer: 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 reconstruction, rehabilitation, or relocation of a publicly-owned
scenic byway would not trigger Section 4(f) unless they are significant
historic sites (Question 8).
23. Cemeteries
Question 23A: Does Section 4(f) apply to cemeteries?
Answer: Cemeteries would only be considered Section 4(f) properties
if they are determined to be on or eligible for the NR as historic
sites deriving significance from association with historic events, from
age, from the presence of graves of persons of transcendent importance,
or from distinctive design features.\31\
---------------------------------------------------------------------------

\31\ For more information on the subject of historic cemeteries
see National Register Bulletin 41, Guidelines for
Evaluating and Registering Cemeteries and Burial Places; 1992 http://www.cr.nps.gov/nr/publications/bulletins/nrb41/.
---------------------------------------------------------------------------

Question 23B: Does Section 4(f) apply to other lands that contain human
remains?
Answer: Informal graveyards, family burial plots, or Native
American burial sites and those sites that contain Native American
grave goods associated with burials, are not in and of themselves

[[Page 42829]]

considered to be Section 4(f) property except when they are
individually listed in or eligible for the NR. These sites should not
automatically be considered only as archeological resources as many
will have value beyond what can be learned by data recovery. If these
sites are considered archeological resources on or eligible for the NR
and also warrant preservation in place, Section 4(f) applies (See
Question 3A).
When conducting the Section 4(f) determination for lands that may
be Native American burial sites or sites with significance to a
federally recognized tribe, consultation with appropriate
representatives from the federally recognized tribes with interest in
the site is essential. Sites containing human remains may also have
cultural and religious significance to a tribe (See Question 6 for a
discussion of Traditional Cultural Places).
24. Joint Development (Park With Highway Corridor)
Question 24: When a public park, recreation area, or wildlife and
waterfowl refuge is established and an area within the Section 4(f)
property is reserved for transportation use prior to or at the same
time the Section 4(f) property was established, do the requirements of
Section 4(f) apply?
Answer: The FHWA must comply with 23 CFR 774.11(i) when determining
if Section 4(f) applies to a property that was jointly planned for
development with a future transportation corridor. Generally, the
requirements of Section 4(f) do not apply to the subsequent use of the
reserved area for its intended transportation purpose. This is because
the land used for the transportation project was reserved from and,
therefore, has never been part of the protected Section 4(f) property.
Nor is a constructive use of the Section 4(f) property possible, since
it was jointly planned with the transportation project. The specific
governmental action that must be taken to reserve a transportation
corridor with the Section 4(f) property is a question of State and
local law, but may include ordinances, adopted land use plans, deed
restrictions, or other actions. Evidence that the reservation was
contemporaneous with or prior to the establishment of the Section 4(f)
property should be documented in the project file. Subsequent
statements of intent to construct a transportation project within the
resource should not be considered sufficient documentation. All
measures which have been taken to jointly develop the transportation
corridor and the park should be completely documented in the project
files. To provide flexibility for the future transportation project,
State and local transportation agencies are advised to reserve wide
corridors. Reserving a wide corridor will allow the future
transportation project to be designed to minimize impacts on the
environmental resources in the corridor. The FHWA encourages the joint
planning for the transportation project and the Section 4(f) property
to specify that any land not needed for the transportation project
right-of-way be transferred to the adjacent Section 4(f) property once
the transportation project is completed.
25. Planned Section 4(f) Properties
Question 25: Do the requirements of Section 4(f) apply to publicly
owned properties planned for park, recreation area, or wildlife refuge
and waterfowl refuge purposes, even though they are not presently
functioning as such?
Answer: Section 4(f) applies when the land is one of the enumerated
types of publicly owned lands and the public agency that owns the
property has formally designated and determined it to be significant
for park, recreation area, or wildlife and waterfowl refuge purposes.
Evidence of formal designation would be 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. For example, when privately held properties of these types
are formally designated into a Master Plan for future park development,
Section 4(f) is not applicable. The key is whether the planned facility
is presently publicly owned, presently formally-designated for Section
4(f) purposes, and presently significant. When this is the case,
Section 4(f) would apply.
26. Late Designation and Late Discovery of Section 4(f) Properties
Question 26A: Are properties in the transportation right-of-way
designated (as park and recreation lands, wildlife and waterfowl
refuges, or historic sites) late in the development of a proposed
project subject to the requirements of Section 4(f)?
Answer: FHWA must comply with 23 CFR 774.13(c) when determining if
a Section 4(f) approval is necessary to use a late-designated property.
Except for archaeological resources, including those discovered during
construction (Question 3B), a project may proceed without consideration
under Section 4(f) if that land was purchased for transportation
purposes prior to the designation or prior to a change in the
determination of significance and if an adequate effort was made to
identify properties protected by Section 4(f) prior to the acquisition.
The adequacy of effort made to identify properties protected by Section
4(f) should consider the requirements and standards that existed at the
time of the search.
Question 26B: How do you address a Section 4(f) use identified late in
the process?
Answer: When there will be a use of a Section 4(f) property that
has changed or was not identified prior to processing a CE, FONSI, or
ROD, a separate Section 4(f) approval will be required (23 CFR
774.9(c)) if a proposed modification of the alignment or design would
require use of a Section 4(f) property; FHWA determines that Section
4(f) applies to the use of a property; or if a proposed modification of
the alignment, design, or measures to minimize harm would result in a
substantial increase in the amount of Section 4(f) property used, a
substantial increase in the adverse impacts to Section 4(f) property,
or a substantial reduction in the measures to minimize harm. Where a
separate Section 4(f) approval is required, any activity not directly
affected by the separate Section 4(f) approval can proceed during the
analysis. A late discovery situation could also result when a property
is overlooked despite a good faith effort to carry out adequate
identification efforts and FHWA decides Section 4(f) now applies to a
property. In cases where Section 4(f) may apply to archeological sites
discovered during construction, the Section 4(f) process will be
expedited and any required evaluation of feasible and prudent avoidance
alternatives will take account of the level of investment already made
(See Question 3B).
27. Temporary Recreational Occupancy or Use of Highway Rights-of-Way
Question 27: Does Section 4(f) apply to temporary recreational uses of
land owned by a State DOT or other applicant and designated for
transportation purposes?
Answer: FHWA must comply with 23 CFR 774.11(h) when determining the
applicability of Section 4(f) to non-park properties that are
temporarily functioning for recreation purposes. In situations where
land owned by a SDOT or other applicant and designated for future
transportation purposes (including highway rights-of-way) is
temporarily occupied or being used for either authorized or
unauthorized recreational purposes such as camping

[[Page 42830]]

or hiking, Section 4(f) does not apply (See 23 CFR 774.11(h)). For
authorized temporary occupancy of transportation rights-of-way for park
or recreation purposes, it is advisable to make clear in a limited
occupancy permit, with a reversionary clause that no long-term right is
created and the park or recreational activity is a temporary one that
will cease once completion of the highway or transportation project
resumes.
28. Tunneling or Bridging (Air Rights) and Section 4(f) Property
Question 28A: Is tunneling under a publicly owned public park,
recreation area, wildlife or waterfowl refuge, or historic site subject
to the requirements of Section 4(f)?
Answer: Section 4(f) applies to tunneling only if the tunneling:
(1) Disturbs archaeological sites that are on or eligible for the
NR which warrant preservation in place;
(2) Causes disruption which would permanently harm the purposes for
which the park, recreation, wildlife or waterfowl refuge was
established;
(3) Substantially impairs the historic values of a historic site;
or
(4) Otherwise does not meet the exception for temporary occupancy
(See Question 7A).
Question 28B: Do the requirements of Section 4(f) apply to bridging
over a publicly owned public park, recreation area, wildlife or
waterfowl refuge, or historic site?
Answer: Section 4(f) applies to bridging a Section 4(f) property if
piers or other appurtenances are physically located in the Section 4(f)
property, requiring an acquisition of land from the property (actual
use). Where the bridge will span the Section 4(f) property entirely,
the proximity impacts of the bridge on the Section 4(f) property should
be evaluated to determine if the placement of the bridge will result in
a constructive use (See 23 CFR 774.15 and Question 7A). An example of a
potential constructive use would be substantial impairment to the
utility of a trail resulting from severely restricted vertical
clearance. If temporary occupancy of a Section 4(f) property is
necessary during construction, the criteria discussed in Question 7A
will apply to determine use.
29. Mitigation Activities on Section 4(f) Property
Question 29: Does the expenditure of Title 23 funds for mitigation or
other non-transportation activity on a Section 4(f) property result in
a use of that property?
Answer: FHWA must comply with 23 CFR 774.13(g) when determining if
a Section 4(f) approval is necessary for a proposed mitigation
activity. A Section 4(f) use occurs only when Section 4(f) land is
permanently incorporated into a transportation facility, there is a
temporary occupancy that is adverse, or there is a constructive use. If
mitigation activities proposed within a Section 4(f) property are
solely for the preservation or enhancement of the resource and the
official(s) with jurisdiction agrees in writing with this assessment, a
Section 4(f) use does not occur.
An example involves the enhancement, rehabilitation or creation of
wetland within a park or other Section 4(f) property as mitigation for
a transportation project's wetland impacts. Where this work is
consistent with the function of the existing park and considered an
enhancement of the Section 4(f) property by the official with
jurisdiction, then Section 4(f) would not apply. In this case the
Section 4(f) land is not permanently incorporated into the
transportation facility, even though it is a part of the project as
mitigation.
30. Emergencies
Question 30: How does Section 4(f) apply in emergency situations?
Answer: In emergency situations, the first concern is responding to
immediate threats to human health or safety, or immediate threats to
valuable natural resources. Compliance with environmental laws, such as
Section 4(f), is considered later. The FHWA may participate in the
costs of repair or reconstruction of Federal-aid highways and roads on
Federal lands which have suffered serious damage as a result of (1)
natural disasters or (2) catastrophic failures from an external cause.
The Emergency Relief (ER) Program, (23 U.S.C. 125), supplements the
commitment of resources by States, their political subdivisions, or
other Federal agencies to help pay for unusually heavy expenses
resulting from extraordinary conditions. As FHWA retains discretionary
control over whether to fund projects under this program, Section 4(f)
applies to all ER funding decisions. The general sequence of events
following the emergency is:
(1) Restore essential service. State and local highway agencies are
empowered to respond immediately, which includes beginning emergency
repairs to restore essential traffic service and to prevent further
damage to Federal-aid highway facilities. Section 4(f) compliance is
not required at this stage.
(2) Governor's proclamation.
(3) Preliminary notification.
(4) Acknowledgement.
(5) Damage assessments.
(6) Formal state request.
(7) Division Administrator's finding.
(8) Implementation of projects (this is where Section 4(f)
compliance occurs).

Under the ER Program, repairs are categorized either as
``emergency'' or ``permanent.'' Emergency repairs are made during and
immediately following a disaster to restore essential traffic, to
minimize the extent of damage, or to protect the remaining facilities.
Permanent repairs to restore the highway to its pre-disaster condition
normally occur after the emergency repairs have been completed.
Section 4(f) compliance occurs during the ``implementation of
projects'' stage for both emergency repairs and permanent repairs. For
emergency repairs, Section 4(f) compliance is undertaken after the
emergency repairs have been completed. For permanent repairs, Section
4(f) compliance is undertaken as part of the normal NEPA project
development process, just as it would be for any other type of Federal-
aid or Federal lands project (i.e. it must be completed prior to the
authorization of right-of-way and construction).
31. Section 6(f) and Other Non-U.S. DOT Grant-in-Aid Program
Requirements
Question 31: How are Section 6(f) of the Land and Water Conservation
Fund Act and other non-U.S. DOT Federal grant-in-aid program
requirements administered for purposes similar to Section 4(f)'s
preservationist purpose treated in the Section 4(f) process?
Answer: For projects that propose the use of land from a Section
4(f) property purchased or improved with Federal grant-in-aid 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 other similar law, or the lands are
otherwise encumbered with a Federal interest, coordination with the
appropriate Federal agency is required to ascertain the agency's
position on the land conversion or transfer. Other Federal requirements
that may apply to the property should be determined through
consultation with the officials with jurisdiction and/or appropriate
U.S. DOI, Housing and Urban

[[Page 42831]]

Development, Federal Emergency Management Agency, or other Federal
officials (See 23 CFR 774.5(d)). These Federal agencies may have
regulatory authority or other requirements for converting land to a
different use. These requirements are independent of the Section 4(f)
requirements and must be satisfied during the project development
process.

[FR Doc. 2012-17461 Filed 7-19-12; 8:45 am]
BILLING CODE 4910-22-P