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Successes in Stewardship: January 2002

Successes in Stewardship

Federal Highway Administration
January 2002

Streamlining Section 4(f): FHWA Promotes Section 4(f) Flexibility

Historic King's Highway in Mercer County, NJ (FHWA NJ Division image) Route 668 in Perry County, OH (FHWA OH Division image)

The Current Status of Section 4(f)

Section 4(f) of the Department of Transportation Act of 1966 is a complex regulation. AASHTO has identified Section 4(f) as the number one roadblock to timely environmental reviews for transportation projects. This perception is supported by a study recently conducted for the Federal Highway Administration (FHWA) that showed involvement with Section 4(f) increased the timeframe for Environmental Impact Statement (EIS) projects by as much as two years. States have expressed concerns about Section 4(f) delays. Flexibility exists in Section 4(f) regulations, and FHWA is working with states to use the flexibility to reach decisions that have common sense results and to conduct timely Section 4(f) evaluations.

Over the last year, FHWA held four meetings across the nation with FHWA Division personnel to discuss how to use the flexibility in existing Section 4(f) regulations. Meeting participants discussed the history and court law of Section 4(f), heard examples of problems states have encountered, discussed specific Section 4(f) issues and documentation needs, received input from FHWA lawyers on what is needed for Section 4(f) legal sufficiency, and brainstormed Section 4(f) initiatives such as enhanced training opportunities, new programmatic agreements, and possible legislative changes. As discussed throughout the meetings, Section 4(f) affects many aspects of environmental streamlining, including the quality of decisions and outcomes, the timeliness of projects, especially smaller projects, and the quality of documentation. Other issues identified at the meetings included the pressure not to invoke Section 4(f) because of the added time and documentation requirements, the overlap and potential conflicts between Section 106 and Section 4(f), and the different interpretations by agencies, consultants, and legal staffs of Section 4(f)'s intent and procedural requirements.

Meeting participants agreed, however, that compliance with Section 4(f) should not be used as a "trump card" over other resources because doing so undermines environmental streamlining. Application of different legal standards — for example, Section 106 versus Section 4(f) — does not mean that one resource is more important than another. What is important is understanding the different resource regulations and standards when reaching decisions and documenting the reasons behind those decisions. As a result of these meetings, FHWA will examine the Section 4(f) issues discussed and identify ways to help FHWA Divisions and state transportation agencies maximize the flexibility inherent in Section 4(f).

State Section 4(f) Programmatics

To overcome Section 4(f) challenges, states can take advantage of the flexibility inherent in Section 4(f). States should conduct Section 4(f) reviews concurrently with Section 106, Endangered Species Act, and Section 404 reviews, consult early in the planning process with staff lawyers, and conduct legal reviews at the pre-draft stage in order to save time and potentially prevent conflicts. States should also prepare detailed, clear, and thorough purpose and need statements and documentation that justify all Section 4(f) decisions in order to legally demonstrate that there has been a prudent, rather than an arbitrary or capricious, use of a Section 4(f) resource. Ohio and New Jersey are two examples of how states, in cooperation with FHWA, are maximizing existing authority to develop Section 4(f) initiatives that meet their specific needs. Ohio is implementing a Section 4(f) programmatic agreement (PA), while New Jersey has identified an issue — the Section 4(f) review of transportation actions impacting historic roadways — that may have the potential to be addressed through a programmatic response. PAs, which foster timely Section 4(f) evaluations because there is no need for individual reviews, can be used when projects can be bundled under types of projects (such as linear corridor crossings or transportation enhancement projects) and when there is a limited set of alternatives and impacts.

	Ohio	New Jersey
Background	Ohio is the only state implementing a Section 4(f) PA, finalized in Fall 2001, that allows the state transportation agency (ODOT) to decide whether programmatic Section 4(f) evaluations apply to projects. The FHWA Ohio Division, which retains its legal Section 4(f) authority, will receive and may review each ODOT decision. ODOT proceeds as if FHWA agreed with its decision and follows specific Section 4(f) procedures outlined in the PA, thus avoiding project delays.	The New Jersey Department of Transportation and the FHWA New Jersey Division are developing a programmatic Section 4(f) for historic roadways. New Jersey is currently addressing several issues, including defining what constitutes a "historic roadway" and degrees of impact to such a roadway and outlining the maintenance of parts of a roadway system in order to ensure access to the traveling public.
Benefits	Saves the FHWA Ohio Division 80 hours of staff time, which can be used to monitor the Section 4(f) process and conduct Section 4(f) training. Eliminates uncertainties about the Section 4(f) process. Improves understanding of the Section 4(f) process, enabling ODOT to act faster on Section 4(f) actions.	Will potentially reduce length of time for Section 4(f) evaluation and avoid delays. Will potentially reduce costs.
Other Streamlining Projects	Categorical Exclusion Programmatic Agreement (CE PA), which was used as the starting point for Ohio's Section 4(f) PA. Section 106/Section 4(f) merger agreement, which avoids conflicts and saving time. Merged NEPA/Section 404 processes, which streamlines EIS development and NEPA review. Continuous Improvement Process, which monitors NEPA compliance and programmatic effectiveness and identifies the need for revisions, new agreements, and training.	AASHTO-approved pilot Section 106/Section 4(f) merger process. Delegation of Section 404 authority to the state, which streamlines the Section 404 process.

Lessons Learned

The promotion of flexibility and balanced decision-making in a timely manner in Section 4(f) evaluations is a shared responsibility.

FHWA Headquarters, field legal counsel, FHWA Divisions, and state transportation agencies can work together to apply the existing flexibility in Section 4(f) as part of their joint overall environmental streamlining goals.

Further reform may require regulatory or statutory changes.

FHWA-AASHTO Environmental Stewardship Demonstration Projects

Sixteen states have registered environmental stewardship demonstrations: CO, DE, FL, IN, LA, MD, ME, MI, MT, NH, NJ, NY, OR, PA, TN, and WS. To learn more about these projects, visit:http://www.itre.ncsu.edu/AASHTO/stewardship/projects.asp

Contact Information

Amy Fox
FHWA New Jersey Division
840 Bear Tavern Road
Suite 310, W.
Trenton, NJ 08628
Phone: (609) 637-4238
Fax: (609) 538-4913
E-mail: amy.fox@fhwa.dot.gov

Scott McGuire
FHWA Ohio Division
200 N.High St
Room 328
Columbus,OH 43215
Phone: (614) 280-6852
Fax: (614) 280-6876
E-mail: scott.mcguire@fhwa.dot.gov

"Successes in Stewardship" is a Federal Highway Administration newsletter highlighting current environmental streamlining practices from around the country.

For more information on environmental streamlining, please visit: http://www.fhwa.dot.gov/environment/strmlng/index.asp.