Section 4(f) 2012 Policy Paper

7/31/2019 Section 4(f) 2012 Policy Paper

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42802 Federal Register / Vol. 77, No. 140 / Friday, July 20, 2012/ Notices

must be received on or before August 9,2012.ADDRESSES: You may send commentsidentified by Docket Number FAA20120582 using any of the followingmethods:

Government-wide rulemaking website:Go to http://www.regulations.govand follow the instructions for sending

your comments electronically. Mail:Send comments to the Docket

Management Facility; U.S. Departmentof Transportation, 1200 New JerseyAvenue SE., West Building GroundFloor, Room W12140, Washington, DC20590.

Fax:Fax comments to the DocketManagement Facility at 2024932251.

Hand Delivery:Bring comments tothe Docket Management Facility inRoom W12140 of the West BuildingGround Floor at 1200 New JerseyAvenue SE., Washington, DC, between 9a.m. and 5 p.m., Monday through

Friday, except Federal holidays.Privacy:We will post all commentswe receive, without change, to http://www.regulations.gov,including anypersonal information you provide.Using the search function of our docketweb site, anyone can find and read thecomments received into any of ourdockets, including the name of theindividual sending the comment (orsigning the comment for an association,

business, labor union, etc.). You mayreview DOTs complete Privacy ActStatement in the Federal Registerpublished on April 11, 2000 (65 FR1947778).

Docket:To read backgrounddocuments or comments received, go tohttp://www.regulations.govat any timeor to the Docket Management Facility inRoom W12140 of the West BuildingGround Floor at 1200 New JerseyAvenue SE., Washington, DC, between 9a.m. and 5 p.m., Monday throughFriday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:Keira Jones (202) 2674024, or TynekaThomas (202) 2677626, Office ofRulemaking, Federal AviationAdministration, 800 IndependenceAvenue SW., Washington, DC 20591.

This notice is published pursuant to14 CFR 11.85.

Issued in Washington, DC, on July 9, 2012.

Lirio Liu,

Acting Director, Office of Rulemaking.

Petition for Exemption

Docket No.:FAA20120582.Petitioner:Ross McCurdy.Section of 14 CFR Affected:14 CFR

61.133(a).Description of Relief Sought:

Petitioner requests relief from certain

limitations of his private pilotcertificate. The exemption, if granted,would allow the petitioner and otherpilots to receive compensation forexpenses for promotional andeducational flights in a CE182 aircraftthat uses an alternative fuel.[FR Doc. 201217715 Filed 71912; 8:45 am]

BILLING CODE 491013P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA20110125]

Section 4(f) Policy Paper

AGENCY: Federal HighwayAdministration (FHWA), DOT.

ACTION: Notice of availability; responseto comments.

SUMMARY: This document provides

notice of the availability of the finalSection 4(f) Policy Paper that willprovide guidance on the proceduresFHWA will follow when approving theuse of land from publicly owned publicparks, recreation areas, wildlife andwaterfowl refuges, and public or privatehistoric sites for Federal highwayprojects.

DATES: Effective Date:July 20, 2012.

FOR FURTHER INFORMATION CONTACT: Ms.MaryAnn Naber, FHWA Office ofPlanning, Environment, and Realty,(202) 3662060, or via email at

[email protected]. For legalquestions, please contact Ms. DianeMobley, Attorney Advisor, FHWAOffice of the Chief Counsel, (202) 3661366, or via email [email protected]. Business hoursfor FHWA are from 8 a.m. to 4:30 p.m.,e.t., Monday through Friday, exceptFederal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

This document may be viewed onlinethrough the Federal eRulemaking portalat: http://www.regulations.govunder

docket ID FHWA20110125. Electronicsubmission and retrieval help andguidelines are available on the Web site.It is available 24 hours each day, 366days this year. Please follow theinstructions. It is also available onFHWAs Web site at: http://www.fhwa.dot.gov. In addition, a hardcopy of the final Section 4(f) PolicyPaper may be viewed and copied at theU.S. Department of Transportation,Dockets Management Facility, RoomW12140, 1200 New Jersey Avenue SE.,Washington, DC 20590.

Background

Section 4(f) concerns the use of landfrom publicly owned parks, recreationareas, wildlife and waterfowl refuges,and public or private historic sites fortransportation projects funded orapproved by agencies of the U.S.Department of Transportation. Although

these requirements are now codified at23 U.S.C. 138 and 49 U.S.C. 303, thesubject matter remains commonlyreferred to as Section 4(f) because therequirements originated in Section 4(f)of the Department of Transportation Actof 1966 (Pub. L. 89670, 80 Stat. 931).The FHWAs Section 4(f) regulations,entitled Parks, Recreation Areas,Wildlife and Waterfowl Refuges, andHistoric Sites, were promulgated in2008 and are codified at 23 CFR Part774. The Section 4(f) Policy Paperprovides guidance on the proceduresthat FHWA will follow when approving

the use of land from publicly ownedpublic parks, recreation areas, wildlifeand waterfowl refuges, and public orprivate historic sites for Federalhighway projects.

This Section 4(f) Policy Paperreplaces the previous Section 4(f) PolicyPaper that FHWA issued in 2005. Laterin 2005, Congress amended Section 4(f)in Section 6009 of the Safe,Accountable, Flexible, EfficientTransportation Equity Act: A Legacy forUsers (SAFETEALU) (Pub. L. 10959,Aug. 10, 2005, 119 Stat. 1144). Thisversion of the Section 4(f) Policy Paper

incorporates the changes that weremade in Section 6009 of SAFETEALUand the 2008 regulations. The Section4(f) Policy Paper consists of two parts:Part I provides an overview and

background information, achronological description of the analysisprocess that FHWA follows to complywith Section 4(f) for a typical project,and a discussion of recommendeddocumentation practices in varioussituations. Part II consists of frequentlyencountered questions and answers.

Comments on the Draft Section 4(f)Policy Paper

On January 4, 2012, FHWA publisheda notice in the Federal Register at 77 FR321 announcing the availability of thedraft Section 4(f) Policy Paper with arequest for comments. The FHWAcarefully considered all commentsreceived. Comments were submitted by12 State DOTs, 3 Federal agencies, 2Indian tribes, 1 transit agency, 4 tradeassociations/interest groups, and 9individuals. The comments are availablefor public review in the docketreferenced above.

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Overall, the commenters indicate thatthe Section 4(f) Policy Paper will behelpful. The majority of changes madein response to the comments wereclarifications to the language in the draftrather than substantive changes toFHWAs 4(f) policies. Severalcommenters suggested policy changesthat would conflict with FHWAs

statutory or regulatory obligations; thosecomments were not adopted. Forexample, one commenter requested thatthe final decisionmaking authority bevested in the officials with jurisdictionover Section 4(f) property rather thanFHWA. Many commenters offeredformatting, grammatical, or editorialsuggestions; those types of commentswere adopted when deemedappropriate.

One complex topic on which anumber of comments were receivedconcerned properties with somecharacteristics that may be similar to a

wildlife and waterfowl refuge, such as aprivate property with a conservation-type easement, and how FHWAdetermines if such properties areconsidered to be wildlife and waterfowlrefuges for purposes of Section 4(f). TheFHWA makes these determinations onan individual, property-by-property

basis following the guidelines describedin Q&As 1A, 1B, 1C, 1D, and 1E. TheFHWA clarified those Q&As in the finalversion but did not adopt commenterrecommendations to make categoricaldecisions, based for example on variousFederal grant programs, or to ignorewhether a property with a conservation

easement is or is not open to the public.Several commenters questioned

whether various aspects of the PolicyPaper are in the nature ofrecommendations or are actualrequirements. The final Section 4(f)Policy Paper does not imposerequirements beyond what is currentlyrequired by statute or regulation andincludes references to the statute orregulation providing the basis for allrequirements mentioned in the PolicyPaper. One commenter asked that aformal dispute resolution process becreated and a few other commenters

asked for a mandate that variousfindings and disagreements must bepublished in an Environmental ImpactStatement. Although these suggestionswere not adopted, additional detailabout recommended practices wasadded to the discussion in Section 4.0,Documentation. There were alsorequests for various visual aides such asmatrices or tables. As a result, anoverview flowchart of the Section 4(f)process was created and added as anappendix. Finally, internal U.S.Department of the Interior (DOI)

instructions for distribution that hadbeen included as an appendix in thedraft Policy Paper were revised by theDOI after publication of the draft PolicyPaper. The final Policy Paper includesa link to the relevant area of DOIs Website in lieu of including the instructionsas an appendix.

The main changes from the draft to

the final version in Part ISection 4(f)Overvieware described in thisparagraph. The headings for Section 1.2were updated and Section 1.2.2, Role ofOfficials with Jurisdiction, now notesthat concurrences should be in writing,and that the regulations require only alack of objection rather thanconcurrence prior to applying theexception for archeological sites ofminimal value for preservation in place.Section 1.3, When does Section 4(f)apply?, now notes that an obligation ofconstruction funds is an approval forpurposes of Section 4(f), as well as

noting that there are regulatoryapplicability rules and exceptions. InSection 3.2, Assessing use of Section 4(f)Properties, guidance was added aboutthe meaning of substantially impaired(also in Q&A 7A), as well as guidanceon determining the boundaries of aprotected property. Section 3.3.2,Programmatic Section 4(f) Evaluations,now notes that programmaticevaluations can be national, regional, orlocal. Within Section 3.3.3.1, Feasibleand Prudent Avoidance Alternatives,language was added emphasizing theneed to try and avoid using Section 4(f)property when it is feasible and prudent

to do so. Section 3.3.3.2., Least OverallHarm, now notes, consistent with thepreamble to the Section 4(f) regulations,that when two or more alternatives aresubstantially equal, FHWA can approveany of those alternatives. The subject ofdocumentation was moved to its ownSection, 4.0, and additional guidancewas added.

The main changes from the draft tothe final version in Part IIQuestionsand Answers Regarding Section 4(F)Applicability and Compliance aredescribed in this paragraph. Q&A 1Enow includes, consistent with Q&A 17C,

the possibility that a site purchased asmitigation for a transportation projectcould be considered a refuge forpurposes of Section 4(f) if the mitigationsite meets all of the applicable criteriafor Section 4(f) status as a refuge. TheQ&A 2A now explains, consistent withprior FHWA Section 4(f) Policy Papers,the circumstances where FHWA mayapply Section 4(f) to a historic site thatis not on or eligible for the NationalRegister of Historic Places (NR). TheQ&A 2B, concerning phased Section 106consultation processes, was moved from

its former location at Q&A 10B, andexplanation added about the level ofeffort that should be undertaken toidentify Section 4(f) properties. TheQ&A 6 now notes that TraditionalCultural Properties may be eligible forthe NR under other criteria besides justarcheology. It was determined thatformer Q&A 13D concerning the

phasing-in of the de minimis impactlegislation was no longer necessary dueto the passage of time and it wasremoved as a result. In Q&A 24examples were added of the types ofgovernment action that could indicatethe reservation of a transportationcorridor within a new park, recreationarea or refuge. Finally, a new Q&A 30was added to explain how FHWAcomplies with Section 4(f) inemergencies.

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

Issued on: July 11, 2012.Victor M. Mendez,

Administrator.

Final Section 4(f) Policy Paper:Thetext of the final Section 4(f) Policy Paperis as follows:

FHWA Section 4(f) Policy Paper

Part ISection 4(f) Overview

1.0 Introduction

This Section 4(f) Policy Papersupplements the Federal HighwayAdministrations (FHWA) regulationsgoverning the use of land from publicly

owned parks, recreation areas, wildlifeand waterfowl refuges, and public orprivate historic sites for Federalhighway projects. Although theserequirements are now codified at 23U.S.C. 138 and 49 U.S.C. 303, thissubject matter remains commonlyreferred to as Section 4(f) because therequirements originated in Section 4(f)of the Department of Transportation Actof 1966 (Pub. L. 89670, 80 Stat. 931).The Section 4(f) Policy Paperreplacesthe FHWAs 2005 edition of thedocument. The FHWAs Section 4(f)regulations, entitled Parks, Recreation

Areas, Wildlife and Waterfowl Refuges,and Historic Sites, are codified at 23CFR Part 774. Many of the terms usedin this Section 4(f) Policy Paperaredefined in the regulation at 23 CFR774.17.

1.1 Purpose

This Section 4(f) Policy Paperwaswritten primarily to aid FHWApersonnel with administering Section4(f) in a consistent manner. In situationswhere a State has assumed the FHWAresponsibility for Section 4(f)



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1This may be a Federal Lands Highway DivisionOffice if the project is located on Federal lands.

2http://www.environment.fhwa.dot.gov/index.asp.

3Tribal lands means all lands within the exteriorboundaries of any Indian reservation and alldependent Indian communities (16 U.S.C. 470w).

compliance, this guidance is intended tohelp the State fulfill its responsibilities.Such situations may arise when Section4(f) responsibilities are assigned to theState in accordance with 23 U.S.C. 325,326, 327, or a similar applicable law.Unless otherwise noted, references toFHWA in this document include aState department of transportation (State

DOT) acting in FHWAs capacitypursuant to an assumption of FHWAsresponsibilities under such laws.

This guidance is also intended to helpState DOTs and other applicants forgrants-in-aid for highway projects toplan projects that minimize harm toSection 4(f) properties. Experiencedemonstrates that when Section 4(f) isgiven consideration early in projectplanning, the risk of a project becomingunnecessarily delayed due to Section4(f) processing is minimized. Ideally,applicants should strive to make thepreservation of Section 4(f) properties,

along with other environmentalconcerns, part of their long and shortrange transportation planning processes.Information and tools to help StateDOTs, metropolitan planningorganizations and other applicantsaccomplish this goal are available onFHWAs Planning and EnvironmentalLinkages Web site located at: http://environment.fhwa.dot.gov/integ/index.asp.

This Section 4(f) Policy Paperis basedon and is intended to reflect: the statuteitself, the legislative history of thestatute; the requirements of the Section

4(f) regulations; relevant courtdecisions; and FHWAs experience withimplementing the statute over fourdecades, including interactions with thepublic and with agencies havingjurisdiction over Section 4(f) properties.The information presented is notregulatory and does not create any rightof action that may be enforced by aprivate citizen in a court of law. ThisSection 4(f) Policy Papersets forth theofficial policy of FHWA on theapplicability of Section 4(f) to varioustypes of land and resources, and otherSection 4(f) related issues. While theother United States Department ofTransportation (U.S. DOT) agencies maychoose to rely upon some or all of thisSection 4(f) Policy Paperas a reference,it was not written as guidance for anyU.S. DOT agency other than FHWA.

This guidance addresses the majorityof situations related to Section 4(f) thatmay be encountered in the developmentof a transportation project. If a novelsituation or project arises which doesnot completely fit the situations orparameters described in this Section 4(f)Policy Paper, the relevant FHWA

Division Office,1 the FHWAHeadquarters Office of ProjectDevelopment and EnvironmentalReview, the Resource CenterEnvironment Technical Service Team,and/or the Office of Chief Counselshould be consulted as appropriate forassistance. For additional informationon Section 4(f) beyond that which is

contained in this Section 4(f) PolicyPaper, readers should refer to theFHWA Environmental Review Toolkit.2

1.2 Agency Authority andResponsibilities

1.2.1 Role of U.S. DOT

The authority to administer Section4(f) and make Section 4(f) approvalsresides with the Secretary of the U.S.DOT. The statute designates theSecretaries of the Interior, Housing andUrban Development, and Agriculture, aswell as the States, for consultation rolesas appropriate. This means that the

Secretary of Transportation isresponsible for soliciting andconsidering the comments of these otherentities, as well as the appropriateofficial(s) with jurisdiction over theSection 4(f) property, as part of theadministration of Section 4(f). However,the ultimate decision maker is theSecretary of Transportation. In a numberof instances, the Section 4(f) regulationsrequire the concurrence of variousofficials in limited circumstances asdiscussed below.

The Secretary of Transportation hasdelegated the authority foradministering Section 4(f) to the FHWAAdministrator in 49 CFR 1.48. Theauthority has been re-delegated to theFHWA Division Administrators, theAssociate Administrator for Planning,Environment, and Realty, and theFederal Lands Highway AssociateAdministrator by FHWA OrderM1100.1A, Chapter 5, Section 17e andChapter 6, Section 7d. Any approval ofthe use of Section 4(f) property, otherthan a use with a de minimis impact ora use processed with an existingprogrammatic Section 4(f) evaluation issubject to legal sufficiency review by theOffice of Chief Counsel.

1.2.2 Role of Officials WithJurisdiction

Consultation

The regulations define the entitiesand individuals who are considered theofficials with jurisdiction for varioustypes of property in 23 CFR 774.17. Inthe case of historic sites, the officials

with jurisdiction are the State HistoricPreservation Officer (SHPO), or, if theproperty is located on tribal land, theTribal Historic Preservation Officer(THPO).3 If the property is located ontribal land but the relevant Indian tribehas not assumed the responsibilities ofthe SHPO, then a representativedesignated by the tribe shall be

recognized as an official withjurisdiction in addition to the SHPO.When the Advisory Council on HistoricPreservation (ACHP) is involved inconsultation concerning a propertyunder Section 106 of the NationalHistoric Preservation Act(NHPA) (16U.S.C. 470), the ACHP is also an officialwith jurisdiction over that resource forthe purposes of Section 4(f). When theSection 4(f) property is a NationalHistoric Landmark (NHL), thedesignated official of the National ParkService is also an official withjurisdiction over that resource for the

purposes of Section 4(f). In the case ofpublic parks, recreation areas, andwildlife and waterfowl refuges, theofficials with jurisdiction are theofficials of the agency or agencies thatown or administer the property inquestion and who are empowered torepresent the agency on matters relatedto the property.

Coordination

The regulations require coordinationwith the official(s) with jurisdiction forthe following situations prior to Section4(f) approval (recognizing that

additional coordination may be requiredunder 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 CFR774.5(c));

Applying Section 4(f) to propertiesthat are subject to Federalencumbrances, (23 CFR 774.5(d));

Applying Section 4(f) toarcheological sites discovered duringconstruction, (23 CFR 774.9(e));

Determining if a property issignificant, (23 CFR 774.11(c)); Determining application to

multiple-use properties, (23 CFR774.11(d));

Determining applicability ofSection 4(f) to historic sites, (23 CFR774.11(e));

Determining constructive use, (23CFR 774.15(d));

http://www.environment.fhwa.dot.gov/index.asphttp://www.environment.fhwa.dot.gov/index.asphttp://environment.fhwa.dot.gov/integ/index.asphttp://environment.fhwa.dot.gov/integ/index.asphttp://environment.fhwa.dot.gov/integ/index.asphttp://www.environment.fhwa.dot.gov/index.asphttp://www.environment.fhwa.dot.gov/index.asphttp://environment.fhwa.dot.gov/integ/index.asphttp://environment.fhwa.dot.gov/integ/index.asphttp://environment.fhwa.dot.gov/integ/index.asp


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4Examples include the obligation of constructionfunds and the approval of access modifications onthe Interstate System.

5Most projects funded by FHWA aretransportation projects; however, in a few instancescertain projects eligible for funding, such as theinstallation of safety enhancement barriers on abridge, have been determined not to have atransportation purpose and therefore do not requirea Section 4(f) approval.

6Since the primary purpose of a refuge may makeit necessary for the resource manager to limit publicaccess for the protection of wildlife or waterfowl,FHWAs policy is that these facilities are notrequired to alwaysbe open to the public. Someareas of a refuge may be closed to public access atall times or during parts of the year to accommodatepreservation objectives.

Determining if proximity impactswill be mitigated to equivalent or bettercondition, (23 CFR 774.15(f)(6)); and

Evaluating the reasonableness ofmeasures to minimize harm, (23 CFR774.3(a)(2) and 774.17).

Lack of Objection

The regulations require a finding that

the official(s) with jurisdiction havebeen consulted and have not objectedin the following situations:

When applying the exception forrestoration, rehabilitation, ormaintenance of historic transportationfacilities, (23 CFR 774.13(a)); and

When applying the exception forarcheological sites of minimal value forpreservation in place. (23 CFR774.13(b)(2)).

Concurrence

The regulations require writtenconcurrence of the official(s) with

jurisdiction in the following situations: Finding there are no adverse effectsprior to making de minimis impactfindings, (23 CFR 774.5(b));

Applying the exception fortemporary occupancies, (23 CFR774.13(d)); and

Applying the exception fortransportation enhancement activitiesand mitigation activities, (23 CFR774.13(g)).

1.3 When does section 4(f) apply?

The statute itself specifies thatSection 4(f) applies when a U.S. DOTagency approves a transportationprogram or project that uses Section 4(f)property. The FHWA does not currentlyapprove any transportation programs;thus, Section 4(f) is limited to projectapprovals. In addition, for the statute toapply to a proposed project there arefour conditions that must all be true:

(1) The project must require anapproval 4 from FHWA in order toproceed;

(2) The project must be atransportation project;5

(3) The project must require the useof land from a property protected bySection 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 proposedsituations where Section 4(f) would notapply include, but are not limited to:

(1) A transportation project beingconstructed solely using State or localfunds and not requiring FHWAapproval.

(2) A project intended to address apurpose that is unrelated to the

movement of people, goods, andservices from one place to another (i.e.,a purpose that is not a transportationpurpose).

(3) A project to be located adjacent toa Section 4(f) property, causing onlyminor proximity impacts to the Section4(f) property (i.e., no constructive use).

(4) A project that will use land froma privately owned park, recreation area,or refuge.

Additional information about theseexamples and many other examples ofsituations where Section 4(f) approval isor is not required is located in thequestions and answers provided in PartII of this Section 4(f) Policy Paper. Insituations where FHWA has determinedthat Section 4(f) does not apply, theproject file should contain sufficientinformation to demonstrate the basis forthat determination (See Section 4.0,Documentation).

2.0 Background

The FHWA originally issued theSection 4(f) Policy Paperin 1985, withminor amendments in 1989. A 2005edition provided comprehensive newguidance on when and how to apply theprovisions of Section 4(f), including

how to choose among alternatives thatall would use Section 4(f) property.Later in 2005, Congress substantiallyamended Section 4(f) in the Safe,Accountable, Flexible, EfficientTransportation Equity Act: A Legacy forUsers (SAFETEALU), (Pub. L. 10959(Aug. 10, 2005), 119 Stat. 1144).SAFETEALU directed the U.S. DOT torevise its Section 4(f) regulations. Inresponse, FHWA and the FederalTransit Administration consulted withinterested agencies and environmentalorganizations before drafting a notice ofproposed rulemaking. The notice of

proposed rulemaking was published forcomment in the Federal Register (71 FR42611, July 27, 2006).

Following careful consideration of thecomments submitted, the new Section4(f) regulations were issued in March2008 (73 FR 13368, March 12, 2008). Aminor technical correction followedshortly thereafter (73 FR 31609, June 3,2008). The new Section 4(f) regulationsclarified the feasible and prudentstandard, implemented a new method ofcompliance for de minimis impactsituations, and updated many other

aspects of the regulations, including theadoption of regulatory standards basedupon the 2005 edition of the Section 4(f)Policy Paperfor choosing amongalternatives that all use Section 4(f)property. This 2012 edition of theSection 4(f) Policy Paperincludesguidance for all of the changespromulgated in the Section 4(f)

regulations in 2008.If any apparent discrepancy between

this Section 4(f) Policy Paperand theSection 4(f) regulation should arise, theregulation takes precedence. Theprevious editions of this Section 4(f)Policy Paperare 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 thatare both publicly owned and open to the

public Publicly owned wildlife andwaterfowl refuges of national, state, orlocal significance that are open to thepublic to the extent that public accessdoes not interfere with the primarypurpose of the refuge 6

Historic sites of national, state, orlocal significance in public or privateownership regardless of whether theyare 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 andwaterfowl refuges, Section 4(f) does notapply, even if such areas are open to thepublic. However, if a governmental

body has a permanent proprietaryinterest in the land (such as apermanent easement, or in somecircumstances, a long-term lease),FHWA will determine on a case-by-case

basis whether the particular propertyshould be considered publicly ownedand, thus, if Section 4(f) applies (SeeQuestions 1B and 1C). Section 4(f) alsoapplies to all historic sites that arelisted, or eligible for inclusion, in theNational Register of Historic Places (NR)at the local, state, or national level of

significance regardless of whether or notthe historic site is publicly owned oropen to the public.

A publicly owned park, recreationalarea or wildlife or waterfowl refugemust be a significant resource for



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Section 4(f) to apply (See 23 CFR774.11(c) and Question 1A). Resourceswhich meet the definitions above arepresumed to be significant unless theofficial with jurisdiction over the siteconcludes that the entire site is notsignificant. The FHWA will make anindependent evaluation to assure thatthe officials finding of significance or

non-significance is reasonable. Insituations where FHWAs determinationcontradicts and overrides that of theofficial with jurisdiction, the reason forFHWAs determination should bedocumented in the project file anddiscussed in the environmentaldocumentation for the proposed action.

Section 4(f) properties should beidentified as early as practicable in theplanning and project developmentprocess in order that completeavoidance of the protected resources can

be given full and fair consideration (See23 CFR 774.9(a)). Historic sites are

normally identified during the processrequired under Section 106 of the NHPAand its implementing regulations (See36 CFR Part 800). Accordingly, theSection 106 process should be initiatedand resources listed or eligible forlisting in the NR identified early enoughin project planning or development todetermine whether Section 4(f) appliesand for avoidance alternatives to bedeveloped and assessed (See 23 CFR774.11(e)).

3.2 Assessing Use of Section 4(f)Properties

Once Section 4(f) properties have

been identified in the study area, it isnecessary to determine if any of themwould be used by an alternative oralternatives being carried forward fordetailed study. Use in the Section 4(f)context is defined in 23 CFR 774.17(Definitions) and the term has veryspecific meaning (see also Question 7 inthis Section 4(f) Policy Paper). Anypotential use of Section 4(f) propertyshould always be described in relateddocumentation consistent with thisdefinition, as well as with the languagefrom 23 CFR 774.13(d) (Exceptions-temporary occupancy) and 23 CFR 774.

15 (Constructive Use Determinations), asapplicable. It is not recommended tosubstitute similar terminology such asaffected, impacted, or encroached uponin describing when a use occurs, as thismay cause confusion ormisunderstanding by the reader.

The most common form of use iswhen land is permanently incorporatedinto a transportation facility. Thisoccurs when land from a Section 4(f)property is either purchased outright astransportation right-of-way or when theapplicant for Federal-aid funds has

acquired a property interest that allowspermanent access onto the propertysuch as a permanent easement formaintenance or other transportation-related purpose.

The second form of use is commonlyreferred to as temporary occupancy andresults when Section 4(f) property, inwhole or in part, is required for project

construction-related activities. Theproperty is not permanentlyincorporated into a transportationfacility but the activity is considered to

be adverse in terms of the preservationpurpose of Section 4(f). Section 23 CFR774.13(d) provides the conditions underwhich temporary occupancies ofland* * *are so minimal as to notconstitute a use within the meaning ofSection 4(f). If all of the conditions inSection 774.13(d) are met, thetemporary occupancy does notconstitute a use. If one or more of theconditions for the exception cannot be

met, then the Section 4(f) property isconsidered used by the project eventhough the duration of onsite activitiesis temporary. Written agreement by theofficial(s) with jurisdiction over theproperty with respect to all theconditions is necessary and should beretained in the project file. Assurancesthat documentation will eventually beobtained via subsequent negotiations arenot acceptable. Also, it is typical thatthe activity in question will be detailedin project plans as an integral andnecessary feature of the project.

The third and final type of use iscalled constructive use. A constructive

use involves no actual physical use ofthe Section 4(f) property via permanentincorporation of land or a temporaryoccupancy of land into a transportationfacility. A constructive use occurs whenthe proximity impacts of a proposedproject adjacent to, or nearby, a Section4(f) property result in substantialimpairment to the propertys activities,features, or attributes that qualify theproperty for protection under Section4(f). As a general matter this means thatthe value of the resource, in terms of itsSection 4(f) purpose and significance,will be meaningfully reduced or lost.

The types of impacts that may qualify asconstructive use, such as increasednoise levels that would substantiallyinterfere with the use of a noisesensitive feature such as a campgroundor outdoor amphitheater, are addressedin 23 CFR 774.15. A projects proximityto a Section 4(f) property is not in itselfan impact that results in constructiveuse. Also, the assessment forconstructive use should be based uponthe impact that is directly attributable tothe project under review, not the overallcombined impacts to a Section 4(f)

property from multiple sources overtime. Since constructive use issubjective, FHWAs delegation ofSection 4(f) authority to the FHWADivision Offices requires consultationwith the Headquarters Office of ProjectDevelopment and EnvironmentalReview prior to finalizing any finding ofconstructive use.

In making any finding of useinvolving Section 4(f) properties, it isnecessary to have up to date right-of-way information and clearly definedproperty boundaries for the Section 4(f)properties. For publicly owned parks,recreation areas, and refuges, the

boundary of the Section 4(f) resource isgenerally determined by the propertyownership boundary. Up-to-date right-of-way records are needed to ensure thatownership boundaries are accuratelydocumented. For historic properties, the

boundary of the Section 4(f) resource isgenerally the NR boundary. If the

historic property boundary of an eligibleor listed site has not been previouslyestablished via Section 106consultation, care should be taken inevaluating the site with respect toeligibility criteria. Depending upon itscontributing characteristics, the actuallegal boundary of the property may notultimately coincide with the NR

boundary. Since preliminaryengineering level of detail (not finaldesign) is customary duringenvironmental analyses, it may benecessary to conduct more detailedpreliminary design in some portions ofthe study area to finalize determinationsof use.

Late discovery and/or latedesignations of Section 4(f) propertiessubsequent to completion ofenvironmental studies may also occur.Each situation must be assessed todetermine if the change in Section 4(f)status results in a previouslyunidentified need for a Section 4(f)approval pursuant to 23 CFR 774.13(c)(See Question 26). The determinationshould be considered and documented,as appropriate, in any re-evaluation ofthe project.

3.3 Approval Options

When FHWA determines that aproject as proposed may use Section 4(f)property, there are three methodsavailable for FHWA to approve the use:

(1) Preparing a de minimis impactdetermination;

(2) Applying a programmatic Section4(f) evaluation; or

(3) Preparing an individual Section4(f) evaluation.

While the applicant will participate ingathering and presenting thedocumentation necessary for FHWA to



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7Regulations implementing Section 106 of theNHPA.

8http://www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp.

make a Section 4(f) approval, the actualapproval action is the FHWAsresponsibility. The three approvaloptions are set out in 23 CFR 774.3 andare discussed below.

3.3.1 Determination of a De MinimisImpact to Section 4(f) Property

A de minimis impact is one that, after

taking into account any measures tominimize harm (such as avoidance,minimization, mitigation orenhancement measures), results ineither:

(1) A Section 106 finding of noadverse effect or no historic propertiesaffected on a historic property; or

(2) A determination that the projectwould not adversely affect the activities,features, or attributes qualifying a park,recreation area, or refuge for protectionunder Section 4(f).

In other words, a de minimis impactdetermination is made for the netimpact on the Section 4(f) property. Thefinal project NEPA decision documentmust include sufficient supportingdocumentation for any measures tominimize harm that were applied to theproject by FHWA in order to make thede minimis impact determination (See23 CFR 774.7(b)). A use of Section 4(f)property having a de minimis impactcan be approved by FHWA without theneed to develop and evaluatealternatives that would avoid using theSection 4(f) property. A de minimisimpact determination may be made fora permanent incorporation or temporaryoccupancy of Section 4(f) property.

A de minimis impact determinationrequires agency coordination and publicinvolvement as specified in 23 CFR774.5(b). The regulation has differentrequirements depending upon the typeof Section 4(f) property that would beused. For historic sites, the consultingparties identified in accordance with 36CFR Part 800 7 must be consulted. Theofficial(s) with jurisdiction must beinformed of the intent to make a deminimis impact determination and mustconcur in a finding of no adverse effector no historic properties affected inaccordance with 36 CFR Part 800.

Compliance with 36 CFR Part 800satisfies the public involvement andagency coordination requirement for deminimis impact findings for historicsites.

For parks, recreation areas, or wildlifeand waterfowl refuges, the official(s)with jurisdiction over the property must

be informed of the intent to make a deminimis impact determination, afterwhich an opportunity for public review

and comment must be provided. Afterconsidering any comments receivedfrom the public, if the official(s) withjurisdiction concurs in writing that theproject will not adversely affect theactivities, features, or attributes thatmake the property eligible for Section4(f) protection, then FHWA may finalizethe de minimis impact determination.

The public notice and opportunity forcomment as well as the concurrence fora de minimis impact determination may

be combined with similar actionsundertaken as part of the NEPA process.If a proposed action does not normallyrequire public involvement, such as forcertain minor projects covered by acategorical exclusion, an opportunity forthe public to review and comment onthe proposed de minimis impactdetermination must be provided. Theopportunity for public input may bepart of a public meeting or another formof public involvement. The final

determination should be made by theFHWA Division Administrator (or in thecase of Federal Lands, the DivisionEngineer) and all supportivedocumentation retained as part of theproject file (See Section 4.0,Documentation).

A de minimis impact determination(see Part II, Questions 1112) is afinding. It is not an evaluation ofalternatives and no avoidance orfeasible and prudent avoidancealternative analysis is required. Thedefinition of all possible planning in 23CFR 774.17 explains that a de minimisimpact determination does not require

the traditional second step of includingall possible planning to minimize harm

because avoidance, minimization,mitigation, or enhancement measuresare included as part of thedetermination.

A de minimis impact determinationmust be supported with sufficientinformation included in the project fileto demonstrate that the de minimisimpact and coordination criteria aresatisfied (23 CFR 774.7(b)). Theapproval of a de minimis impact should

be documented in accordance with thedocumentation requirements in 23 CFR

774.7(f). These requirements may besatisfied by including the approval inthe NEPA documentationi.e., anEnvironmental Assessment (EA),Environmental Impact Statement (EIS),or Categorical Exclusion (CE)determination, Record of Decision(ROD), or Finding of No SignificantImpact (FONSI),or in an individualSection 4(f) evaluation when one isprepared for a project. When anindividual Section 4(f) evaluation isrequired for a project in which one ormore de minimis impact determinations

will also be made, it is recommendedthat the individual Section 4(f)evaluation include the relevantdocumentation to support the proposedde minimis impact determination(s).

In situations where FHWA concludesin the individual Section 4(f) evaluationthat there is no feasible and prudentavoidance alternative and there are two

or more alternatives that use Section 4(f)property, a least overall harm analysiswill be necessary pursuant to 23 CFR774.3(c) (See Section 3.3.3.2, Alternativewith Least Overall Harm). In suchinstances, while the de minimis impactwill be considered in that analysis, thede minimis impact is unlikely to be asignificant differentiating factor betweenalternatives because the net harmresulting from the de minimis impact isnegligible. The determination of leastoverall harm will depend upon acomparison of the factors listed in theregulation, 23 CFR 774.3(c)(1).

3.3.2 Programmatic Section 4(f)Evaluations

Programmatic Section 4(f) evaluationsare a time-saving procedural option forpreparing 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 projectsthat have a common fact pattern from aSection 4(f) perspective. Throughapplying a specific set of criteria, basedupon common experience that includesproject type, degree of use and impact,the evaluation of avoidance alternativesis standardized and simplified. Anapproved programmatic Section 4(f)evaluation may be relied upon to covera particular project only if the specificconditions in that programmaticevaluation are met. Programmaticevaluations can be nationwide, region-wide, or statewide. The development ofany programmatic evaluation, includingregion-wide and statewide, must becoordinated with the FHWA Office ofProject Development and EnvironmentalReview and the FHWA Office of ChiefCounsel.

As of the date of publication of thisSection 4(f) Policy Paper, the FHWA hasissued five nationwide programmaticSection 4(f) evaluations: 8

(1) Section 4(f) Statement andDetermination for Independent Bikewayor Walkway Construction Projects

(2) Programmatic Section 4(f)Evaluation and Approval for FHWAProjects that Necessitate the Use ofHistoric Bridges

http://www.environment.fhwa.dot.gov/4f/4fnationwideevals.asphttp://www.environment.fhwa.dot.gov/4f/4fnationwideevals.asphttp://www.environment.fhwa.dot.gov/4f/4fnationwideevals.asphttp://www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp


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9 In the Section 4(f) statute, the term alternativeis used in the context of an option which avoidsusing land from a Section 4(f) property and is notlimited to the context of the end-to-end alternativeas defined by the project applicant. This section ofthe Section 4(f) Policy Paperuses the phraseavoidance alternatives and/or design options inorder to clarify that, depending upon the projectcontext, the potential alternatives that should beevaluated to avoid Section 4(f) property may beend-to-end alternatives ormay be a change to onlya portion of the end-to-end project.

(3) Final Nationwide Section 4(f)Evaluation and Approval for Federally-Aided Highway Projects with MinorInvolvements with Historic Sites

(4) Final Nationwide Section 4(f)Evaluation and Approval for Federally-Aided Highway Projects with MinorInvolvements with Public Parks,Recreation Lands, Wildlife andWaterfowl Refuges

(5) Nationwide Programmatic Section4(f) Evaluation and Approval forTransportation Projects That Have a NetBenefit to a Section 4(f) Property

Before being adopted, all of thenationwide programmatic Section 4(f)evaluations were published in draftform in the Federal Register for publicreview and comment. They were alsoprovided to appropriate Federalagencies, including the Department ofthe Interior (U.S. DOI), for review. Eachprogrammatic Section 4(f) evaluation

was reviewed by FHWAs Office ofChief Counsel for legal sufficiency.

It is not necessary to coordinateproject-specific applications ofapproved programmatic Section 4(f)evaluations with the U.S. DOI unless theU.S. DOI owns or has administrativeoversight over the Section 4(f) propertyinvolved (is an official with jurisdictionor has an oversight role as describedQuestions 9D and 31). As specified inthe applicable programmatic Section4(f) evaluation, it is still necessary tocoordinate with the official(s) withjurisdiction over such properties. A

legal sufficiency review of a project-specific application of an approvedprogrammatic Section 4(f) evaluation isnot necessary. As such, a primary

benefit to using the prescribed step-by-step approach contained in aprogrammatic evaluation is thereduction of time to process a Section4(f) approval.

Documentation required to apply aprogrammatic Section 4(f) evaluationmust support that the specificprogrammatic criteria have been met(See 23 CFR 774.3(d)(1)). A separateSection 4(f) document is not required

but an indication in the NEPAdocumentation that Section 4(f)compliance was satisfied by theapplicable programmatic evaluation isrequired (See 23 CFR 774.7(f)). Asspecified in the programmaticevaluations, the requirement to assesswhether there is a feasible and prudentavoidance alternative and all possibleplanning applies. The necessaryinformation supporting the applicabilityof the programmatic evaluation will beretained in the project file (See Section4.0, Documentation).

3.3.3 Individual Project Section 4(f)Evaluations

An individual Section 4(f) evaluationmust be completed when approving aproject that requires the use of Section4(f) property if the use, as described inSections 3.1 and 3.2 above, results in agreater than de minimis impact and a

programmatic Section 4(f) evaluationcannot be applied to the situation (23CFR 774.3). The individual Section 4(f)evaluation documents the evaluation ofthe proposed use of Section 4(f)properties in the project area of allalternatives. The individual Section 4(f)evaluation requires two findings, whichwill be discussed in turn:

(1) That there is no feasible andprudent alternative that completelyavoids the use of Section 4(f) property;and

(2) That the project includes allpossible planning to minimize harm tothe Section 4(f) property resulting from

the transportation use (See 23 CFR774.3(a)(1) and (2)).

3.3.3.1 Feasible and PrudentAvoidance Alternatives

The intent of the statute, and thepolicy of FHWA, is to avoid and, whereavoidance is not feasible and prudent,minimize the use of significant publicparks, recreation areas, wildlife andwaterfowl refuges and historic sites byour projects. Unless the use of a Section4(f) property is determined to have a deminimis impact, FHWA must determinethat no feasible and prudent avoidance

alternative exists before approving theuse of such land (See 23 CFR 774.3).The Section 4(f) regulations refer to analternative that would not require theuse of any Section 4(f) property as anavoidance alternative. Feasible andprudent avoidance alternatives are thosethat avoid using any Section 4(f)property and do not cause other severeproblems of a magnitude thatsubstantially outweigh the importanceof protecting the Section 4(f) property(23 CFR 774.17). This section of theSection 4(f) Policy Paperfocuses on theidentification, development, evaluation,

elimination and documentation ofpotential feasible and prudentavoidance alternatives in a Section 4(f)evaluation document.

The first step in determining whethera feasible and prudent avoidancealternative exists is to identify areasonable range of project alternativesincluding those that avoid using Section4(f) property. The avoidance alternativeswill include the no-build. Thealternatives screening processperformed during the scoping phase ofNEPA is a good starting point for

developing potential section 4(f)avoidance alternatives and/or designoptions.9 Any screening of alternativesthat may have occurred during thetransportation planning phase may beconsidered as well. It may be necessary,however, to look for additionalalternatives if the planning studies andthe NEPA process did not identify

Section 4(f) properties and take Section4(f) requirements into account. IfSection 4(f) avoidance alternatives wereeliminated during the earlier phases ofproject development for reasonsunrelated to Section 4(f) impacts or afailure to meet the project purpose andneed, they may need to be reconsideredin the Section 4(f) process. In addition,it is often necessary to develop andanalyze new alternatives, or newvariations of alternatives rejected fornon-Section 4(f) reasons during theearlier phases.

The no-action or no-build alternative

is an avoidance alternative and shouldbe included in the analysis as such. Inidentifying other avoidance alternatives,FHWA should consider the reasonablealternatives that meet the purpose andneed of the project. Potentialalternatives to avoid the use of Section4(f) property may include one or moreof the following, depending on projectcontext:

Location AlternativesA locationalternative refers to the re-routing of theentire project along a differentalignment.

Alternative ActionsAn alternativeaction could be a different mode oftransportation, such as rail transit or busservice, or some other action that doesnot involve construction such as theimplementation of transportationmanagement systems or similarmeasures.

Alignment ShiftsAn alignmentshift is the re-routing of a portion of theproject to a different alignment to avoida specific resource.

Design ChangesA design changeis a modification of the proposed designin a manner that would avoid impacts,such as reducing the planned medianwidth, building a retaining wall, or

incorporating design exceptions.When considering alignment shiftsand design changes, it is important to



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keep in mind the range of allowableconfigurations and design values forroadway elements and different types ofroads. These guidelines are containedwithin the official state standards and/or the Green Book, properly titled APolicy on the Geometric Design ofHighways and Streets andpublished bythe American Association of State

Highway and Transportation Officials.The guidelines set out the generallyacceptable ranges of dimensions forroadway elements and typicalapplications on different types ofroadway facilities. These ranges ofvalues provide planners and designersthe ability to develop projects at anacceptable cost and level of performance(e.g. safety, traffic flow, sustainability),while balancing the site-specificconditions, constraints, andimplications of design decisions. Whereit may be appropriate to select a valueor dimension outside of the ranges that

are established in State and nationalguidelines, design exceptions areencouraged and permitted. However,the consideration and selection of avalue outside of the established rangesshould be based on the context of thefacility and an analysis of how thedesign may affect the safety, flow oftraffic, constructability, maintainability,environment, cost, and other relatedissues.

An important consideration inidentifying potential avoidancealternatives is that they should have areasonable expectation of serving trafficneeds that have been identified in the

project purpose and need. A finallimitation in identifying potentialavoidance alternatives is that a projectalternative 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 thatwould not use any Section 4(f) property.(Note: A determination of a de minimisimpact for a specific Section 4(f)property may be made withoutconsidering avoidance alternatives forthat property, even if that use occurs aspart of an alternative that also includesother uses that are greater than de

minimis.) Consequently, at this step ofanalysis the degree of impact to Section4(f) property is not relevantthe onlyquestion is whether the alternativewould require any use of Section 4(f)property because an alternative usingany amount of Section 4(f) property isnot an avoidance alternative.Subsequent steps in the analysis willconsider the degree of impact as well asthe availability of measures to minimizeimpacts.

Once the potential avoidancealternative(s) have been identified, the

next task is to determine, for eachpotential avoidance option, whetheravoiding the Section 4(f) property isfeasible and prudent. The Section 4(f)regulations specify how FHWA is todetermine whether a potentialavoidance alternative is feasible andprudent in 23 CFR 774.17. Thedefinition explains that a feasible and

prudent avoidance alternative is onethat avoids using Section 4(f) propertyand does not cause other severeproblems of a magnitude thatsubstantially outweigh the importanceof protecting the Section 4(f) property.In order to determine whether there areother severe problems of a magnitudethat substantially outweighs theimportance of protecting the Section 4(f)property, both the feasibility and theprudence of each potential avoidancealternative must be considered.

Care must be taken when makingdeterminations of feasibility and

prudence not to forget or de-emphasizethe importance of protecting the Section4(f) property. This stems from thestatute itself, which requires that specialeffort should be made to preserve thenatural beauty of the countryside andpublic park and recreation lands,wildlife and waterfowl refuges, andhistoric sites. The regulationincorporates this aspect of the statute inthe definition of feasible and prudentavoidance alternative which states thatit is appropriate to consider therelative value of the resource to thepreservation purpose of the statute. In

effect, the first part of the definitionrecognizes the value of the individualSection 4(f) property in question,relative to other Section 4(f) propertiesof the same type. This results in asliding scale approach that maximizesthe protection of Section 4(f) propertiesthat are unique or otherwise of specialsignificance by recognizing that whileall Section 4(f) properties are important,some Section 4(f) properties are worthyof a greater degree of protection thanothers.

The regulations state that a potentialavoidance alternative is not feasible if it

cannot be built as a matter of soundengineering judgment (23 CFR 774.17).If a potential avoidance alternativecannot be built as a matter of soundengineering judgment it is not feasibleand the particular engineering problemwith the alternative should bedocumented in the project files with areasonable degree of explanation. Indifficult situations, the FHWA Divisionmay obtain assistance from FHWAsubject matter experts located in FHWAHeadquarters or the FHWA ResourceCenter.

The third and final part of thefeasibleand prudent avoidance alternativedefinition sets out standards fordetermining if a potential avoidancealternative is prudent. An alternative isnot prudent if:

(1) It compromises the project to adegree that it is unreasonable to proceedin light of the projects stated purpose

and need (i.e., the alternative doesntaddress the purpose and need of theproject);

(2) It results in unacceptable safety oroperational problems;

(3) After reasonable mitigation, it stillcauses severe social, economic, orenvironmental impacts; severedisruption to established communities;severe or disproportionate impacts tominority or low-income populations; orsevere impacts to environmentalresources protected under other Federalstatutes;

(4) It results in additionalconstruction, maintenance, oroperational costs of extraordinarymagnitude;

(5) It causes other unique problems orunusual factors; or

(6) It involves multiple factors asoutlined above that, while individuallyminor, cumulatively cause uniqueproblems or impacts of extraordinarymagnitude.

The prudence determination involvesan analysis that applies each of the sixfactors, if applicable, to the potentialavoidance alternative. If a factor is notapplicable FHWA recommends simplynoting that fact in the analysis.

Supporting documentation is requiredin the Section 4(f) evaluation forfindings of no feasible and prudentalternatives (See 23 CFR 774.7(a)).Documentation of the process used toidentify, develop, analyze and eliminatepotential avoidance alternatives is veryimportant. The Section 4(f) evaluationshould describe all efforts in this regard.This description need not include everypossible detail, but it should clearlyexplain the process that occurred and itsresults. It is appropriate to maintaindetailed information in the project filewith a summary in the Section 4(f)evaluation. If the information isespecially voluminous, a technicalreport should be prepared, summarized,and referenced in the Section 4(f)evaluation. The discussion may beorganized within the Section 4(f)evaluation in any manner that allowsthe reader to understand the full rangeof potential avoidance alternativesidentified, the process by whichpotential avoidance alternatives wereidentified and analyzed for feasibilityand prudence. Possible methods fororganizing the discussion include a



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chronological discussion; a discussionorganized geographically by projectalternatives or project phases ofconstruction; or by the type of Section4(f) properties.

For larger highway projects withmultiple Section 4(f) properties in theproject area, it may be desirable todivide the analysis into a macro and a

micro-level evaluation in order todistinguish the analysis of end-to-endproject alternatives that avoid using anySection 4(f) property from the analysisof design options to avoid using a singleSection 4(f) property. The macro-levelevaluation would address any end-to-end avoidance alternatives that can bedeveloped, as well as any alternativeactions to the proposed highway projectsuch as travel demand reductionstrategies or enhanced transit service inthe project area. The micro-levelevaluation would then address, for eachSection 4(f) property, whether the

highway could be routed to avoid theproperty by shifting to the left or right,

by bridging over, or tunneling under theproperty, or through another alignmentshift or design change. The analysis may

be presented in any manner thatdemonstrates, for each Section 4(f)property used, that there is no feasibleand prudent avoidance alternative. Evenif all of the alternatives use a Section4(f) property, there is still a duty to tryto avoid the individual Section 4(f)properties within each alternative.

3.3.3.2 Alternative With Least OverallHarm

If the analysis described in thepreceding section concludes that thereis no feasible and prudent avoidancealternative, then FHWA may approve,from among the remaining alternativesthat use Section 4(f) property, only thealternative that causes the least overallharm in light of the statutespreservation purpose. Pursuant tosubstantial case law, if the assessment ofoverall harm finds that two or morealternatives are substantially equal,FHWA can approve any of thosealternatives. This analysis is requiredwhen multiple alternatives that useSection 4(f) property remain underconsideration.

To determine which of thealternatives would cause the leastoverall harm, FHWA must compareseven factors set forth in 23 CFR774.3(c)(1) concerning the alternativesunder consideration. The first fourfactors relate to the net harm that eachalternative would cause to Section 4(f)property:

(1) The ability to mitigate adverseimpacts to each Section 4(f) property

(including any measures that result inbenefits to the property);

(2) The relative severity of theremaining harm, after mitigation, to theprotected activities, attributes, orfeatures that qualify each Section 4(f)property for protection;

(3) The relative significance of eachSection 4(f) property; and

(4) The views of the officials withjurisdiction over each Section 4(f)property.

When comparing the alternativesunder these factors, FHWA policy is todevelop comparable mitigationmeasures where possible. In otherwords, the comparison may not beskewed by over-mitigating onealternative while under-mitigatinganother alternative for whichcomparable mitigation could beincorporated. In addition, the mitigationmeasures relied upon as part of thiscomparison should be incorporated intothe selected alternative. If subsequentdesign or engineering work occurs afterthe alternative is selected that requireschanges to the mitigation plans forSection 4(f) property, FHWA mayrequire revisions to previous mitigationcommitments commensurate with theextent of design changes in accordancewith 23 CFR 771.109(b) and (d), 127(b),129, and 130.

The remaining three factors enableFHWA to take into account anysubstantial problem with any of thealternatives remaining underconsideration on issues beyond Section4(f). These factors are:

(5) The degree to which eachalternative meets the purpose and needfor the project;

(6) After reasonable mitigation, themagnitude of any adverse impacts toresources not protected by Section 4(f);and

(7) Substantial differences in costsamong the alternatives.

By balancing the seven factors, four ofwhich concern the degree of harm toSection 4(f) properties, FHWA will beable to consider all relevant concerns todetermine which alternative wouldcause the least overall harm in light ofthe statues preservation purpose. Theleast overall harm balancing test is setforth in 774.3(c)(1). This allows FHWAto fulfill its statutory mandate to makeproject decisions in the best overallpublic interest required by 23 U.S.C.109(h). Through this balancing offactors, FHWA may determine that aserious problem identified in factors (v)through (vii) outweighs relatively minornet harm to a Section 4(f) property. Theleast overall harm determination alsoprovides FHWA with a way to compareand select between alternatives that

would use different types of Section 4(f)properties when competing assessmentsof significance and harm are provided

by the officials with jurisdiction overthe impacted properties. In evaluatingthe degree of harm to Section 4(f)properties, FHWA is required by theregulations to consider the views (ifany) expressed by the official(s) with

jurisdiction over each Section 4(f)property. If an official with jurisdictionstates that all resources within thatofficials jurisdiction are of equal value,FHWA may still determine that theresources have different value if such adetermination is supported byinformation in the project file. Also, ifthe officials with jurisdiction over twodifferent properties provide conflictingassessments of the relative value ofthose properties, FHWA shouldconsider the officials views but thenmake its own independent judgmentabout the relative value of those

properties. Similarly, if the official(s)with jurisdiction decline to provide anyinput at all regarding the relative valueof the affected properties, FHWA shouldmake its own independent judgmentabout the relative value of thoseproperties.

FHWA is required to explain how theseven factors were compared todetermine the least overall harmalternative (See 23 CFR 774.7(c)). Thedraft Section 4(f) evaluation willdisclose the various impacts to thedifferent Section 4(f) properties therebyinitiating the balancing process. Itshould also disclose the relative

differences among alternatives regardingnon-Section 4(f) issues such as theextent to which each alternative meetsthe project purpose and need. Thedisclosure of impacts should include

both objective, quantifiable impacts andqualitative measures that provide amore subjective assessment of harm.Preliminary assessment of how thealternatives compare to one another mayalso be included. After circulation of thedraft Section 4(f) evaluation inaccordance with 23 CFR 774.5(a),FHWA will consider comments receivedon the evaluation and finalize the

comparison of all factors listed in 23CFR 774.3(c)(1) for all the alternatives.The analysis and identification of thealternative that has the overall leastharm must be documented in the finalSection 4(f) evaluation (See 23 CFR774.7(c)). In especially complicatedprojects, the final approval to use theSection 4(f) property may be made inthe decision document (ROD or FONSI).

3.4 Examples of Section 4(f) Approvals

The table below describes five projectalternative scenarios. In each project



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scenario various alternatives areconsidered and there are variousoptions available to approve the use ofthe Section 4(f) property needed for theproject. The examples illustrate theapproval options as well as the pointthat in some situations FHWA may onlyapprove a certain alternative. Theseexamples are not intended to address

every possible scenario.In Project 1 there is a single build

alternative A, for which FHWAdetermines the use to be a de minimisimpact and therefore does not require anindividual Section 4(f) evaluation. Oncethe coordination required by 23 CFR774.5(b) is completed, FHWA mayapprove the de minimis impact and theapplicant may proceed with the buildalternative.

Project 2 has two alternatives. TheFHWA determines that alternative A hasa 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 thecoordination required by 23 CFR774.5(b), FHWA may approve eitheralternative under Section 4(f). As in theprevious example, an individual Section4(f) evaluation is not required, thereforethe feasibility and prudence of avoidingSection 4(f) properties does not have to

be determined. Furthermore, when thereare only de minimis impacts, evenamong multiple alternatives, a leastharm analysis is not necessary and thereis no need to compare the significanceof the competing Section 4(f) properties.

The process to choose betweenalternatives A or B in the secondexample may be based on non-Section4(f) considerations as determinedappropriate through the projectdevelopment process.

In Project 3, there are threealternatives under consideration. TheFHWA determines that alternative Ameets the criteria of a de minimisimpact, while alternative B has a minorimpact on a Section 4(f) property forwhich 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 minimisimpact determination is not possibleand no programmatic Section 4(f)evaluation applies. In this example, allthree alternatives use a Section 4(f)property and thus none can beconsidered to be an avoidancealternative. For this project, alternative

A may proceed immediately once thecoordination required by 23 CFR 774.5is complete, through an approved deminimis impact determination.Alternative B may be approved byfollowing the procedures designated inthe applicable programmatic Section4(f) evaluation, whose end resultdemonstrates no feasible and prudent

avoidance alternative. However, in thisexample if the applicant favorsalternative C, then an individual Section4(f) evaluation can be prepared toconsider whether or not alternative Ccan be approved under Section 4(f). Theindividual Section 4(f) evaluation firstdetermines that there is no feasible andprudent avoidance alternative asdefined in 23 CFR 774.17. Theevaluation then considers whichalternative (A, B, or C) has the leastoverall harm using the factors in 23 CFR774.3(c). Alternative C could only beapproved if it is identified as having the

least overall harm, which would bepossible; for example, if alternatives Aand B both have severe impacts to animportant non-Section 4(f) resource andthe impacts of alternative C can beadequately mitigated. In that case, uponcompletion of the coordination required

by 23 CFR 775.5(a) and all possibleplanning to minimize harm as definedin 23 CFR 774.17, alternative C could beapproved.

Project 4 differs slightly in havingmultiple de minimis impacts to Section4(f) properties with alternative A, and amix ofde minimis impacts and greater

than de minimis impacts not covered bya programmatic section 4(f) evaluationwith alternative B. If alternative A ischosen, FHWA would satisfy Section4(f) by making a de minimis impactdetermination for each property used inaccordance with 23 CFR 774.3(b),774.5(b), and 774.7(c). To considerselecting alternative B, an individualSection 4(f) evaluation would beprepared in accordance with 23 CFR774.3(a), 774.5(a), and 774.7(a);however, a determination ofde minimisimpact for a specific Section 4(f)property can be made withoutconsidering avoidance alternatives forthat property, even if that use occurs aspart of an alternative that also includesother uses that are greater than deminimis. In this example, an additionalalternative C is developed as part of theSection 4(f) evaluation. Alternative Cavoids using any Section 4(f) property,

and the evaluation then determines,using the definition in 23 CFR 774.17,that alternative C is feasible andprudent. Alternative C may proceedimmediately because it does not use anySection 4(f) property and no Section 4(f)approval is needed. In this example,since alternative C is a feasible andprudent avoidance alternative the

FHWA may not approve alternative B,although alternative A would still beavailable for selection because itsimpacts on Section 4(f) properties are deminimis. However, if the facts arechanged and we now assume that theevaluation of avoidance alternative Chad found that it was not feasible andprudent, then the Section 4(f) evaluationcould be completed. The evaluationwould determine the least overall harmamongst alternatives A and B using thefactors in 23 CFR 774.3(c). (In thisvariation of the example, the leastoverall harm determination does not

include alternative C in the comparisonbecause alternative C was previouslyeliminated when it was found not to befeasible and prudent.) Alternative Bcould only be approved if it is identifiedas having the least overall harm. Thiswould be possible, for example ifalternative A would not meet the projectpurpose and need as well as alternativeB, alternative A would be substantiallymore expensive, and the Section 4(f)property used by alternative B has nounusual significance and could beadequately mitigated. In that example,upon completion of the coordination

required by 23 CFR 774.5(a) and allpossible planning to minimize harm asdefined in 23 CFR 774.17, alternative Bcould be approved even though it usesSection 4(f) property.

Project 5 has two alternatives, bothhaving greater than de minimis impactson a different Section 4(f) property. Tochoose among alternatives A and B, anindividual Section 4(f) evaluation must

be prepared in accordance with 23 CFR774.3(a), 774.5(a), and 774.7(a) thatdemonstrates no feasible and prudentavoidance alternative exists, and a leastoverall harm analysis must becompleted using the factors in 23 CFR774.3(c). The alternative identified ashaving the least overall harm mayproceed upon completion of thecoordination required by 23 CFR774.5(a) and all possible planning tominimize harm as defined in 23 CFR774.17.



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

TABLE 1PROJECT ALTERNATIVE SCENARIOS

AlternativeUse of Section4(f) property

Individual Section4(f) evaluation?

Outcome

Project 1, alternative A .................. De minimisimpact ........................ Not necessary ............................... May proceed with A.Project 2, alternative A .................. De minimis impact on one prop-

erty.Not necessary ............................... May proceed with A or B; Section

4(f) is not determinative.Project 2, alternative B .................. De minimis impact on three prop-

erties.Not necessary.

Project 3, alternative A .................. De minimisimpact ........................ Not necessary ............................... May proceed with A or B; Section4(f) is not determinative.

Project 3, alternative B .................. Minor use, programmatic Section4(f) evaluation is applicable.

Not necessary.

Project 3, alternative C .................. Greater than de minimisimpact ... Necessary. If no feasible and pru-dent avoidance alternative isidentified, then a least overallharm analysis would compareA, B, and C.

May proceed with C only if C hasless overall harm than A or B.

Project 4, alternative A .................. De minimis impact on two prop-erties.

Not necessary ............................... May proceed with A.

Project 4, alternative B .................. De minimis impact on one prop-erty & greater than de minimisimpact on another property.

Necessary. As part of the evalua-tion, a new Alternative C is de-veloped that avoids using Sec-tion 4(f) property.

If C is found feasible and prudent,cannot proceed with B. If C isnot feasible and prudent, mayproceed with B only if B hasless overall harm than A.

Project 4, alternative C .................. None ............................................. Not necessary to complete the

Section 4(f) evaluation to pro-ceed with C.

May proceed with C; no Section

4(f) approval is required.

Project 5, alternative A .................. Greater than de minimisimpact ... Necessary. The evaluation mustseek to identify feasible andprudent avoidance alternatives.Assuming none are found, thena least harm analysis will com-pare A and B.

Least overall harm analysis deter-mines which alternative, A or B,may proceed.

Project 5, alternative B .................. Greater than de minimisimpact.

3.5 All Possible Planning To MinimizeHarm

After determining that there are nofeasible and prudent alternatives to

avoid the use of Section 4(f) property,the project approval process for anindividual Section 4(f) evaluationrequires the consideration anddocumentation of all possible planningto minimize harm to Section 4(f)property (See 23 CFR 774.3(a)(2)). All

possible planning, defined in 23 CFR774.17, means that all reasonablemeasures identified in the Section 4(f)evaluation to minimize harm or mitigatefor adverse impacts and effects must beincluded in the project. All possibleplanning to minimize harm does notrequire analysis of feasible and prudent

avoidance alternatives, since suchanalysis will have already occurred inthe context of searching for feasible andprudent alternatives that avoid Section4(f) properties altogether under 774.3(a)(1).

Minimization of harm may entail bothalternative design modifications thatreduce the amount of Section 4(f)property used and mitigation measuresthat compensate for residual impacts.Minimization and mitigation measuresshould be determined throughconsultation with the official(s) with

jurisdiction. These include the SHPOand/or THPO for historic properties orofficials owning or administering theresource for other types of Section 4(f)properties. Mitigation measuresinvolving public parks, recreation areas,or wildlife or waterfowl refuges mayinvolve a replacement of land and/orfacilities of comparable value andfunction, or monetary compensation toenhance the remaining land. Neither theSection 4(f) statute nor regulationsrequires the replacement of Section 4(f)property used for highway projects, butthis option may be the moststraightforward means of minimizingharm to parks, recreation areas, andwildlife waterfowl refuges and ispermitted under 23 CFR 710.509 as amitigation measure for direct project

impacts.Mitigation of historic sites usually

consists of those measures necessary topreserve the historic integrity of the siteand agreed to in accordance with 36CFR 800 by FHWA, the SHPO or THPO,and other consulting parties. In anycase, the cost of mitigation should be areasonable public expenditure in lightof the severity of the impact on theSection 4(f) property in accordance with23 CFR 771.105(d). Additional lawssuch as Section 6(f) of the Land and

Water Conservation Fund Act may haveseparate mitigation and approvalrequirements and compliance with suchrequirements should also be describedwithin the Section 4(f) discussion of allpossible planning to minimize harm.

4.0 Documentation

U.S. DOT departmental requirementsfor documenting Section 4(f) analysisand approvals (DOT Order 5610.1C)have been incorporated into FHWAregulations, guidance and policy. TheFHWAs procedures regarding thepreparation and circulation of Section4(f) documents is contained in 23 CFR774.5 and FHWAs Technical Advisory,T 6640.8A, Guidance for Preparing andProcessing of Environmental andSection 4(f) Documents.10

The documentation of all Section 4(f)determinations, consultations,coordination and approvals is intendedto establish a record of FHWAscompliance with the regulatory process.Documentation also provides evidencethat the substantive requirements have

been met. Section 4(f) documentationand processing requirements varydepending on the type of Section 4(f)

http://environment.fhwa.dot.gov/index.asphttp://environment.fhwa.dot.gov/index.asphttp://environment.fhwa.dot.gov/index.asphttp://environment.fhwa.dot.gov/index.asphttp://environment.fhwa.dot.gov/index.asp


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property used and whether or not theuse meets the criteria of a de minimisimpact. However, all situations whichinvolve Section 4(f) property willnecessitate some degree ofdocumentation: either in the NEPAdocument, a Section 4(f) evaluation, orthe project file.

The project file is the agencys written

record that memorializes the basis fordetermining that an impact is deminimis or that there is no feasible andprudent avoidance alternative to the useof the Section 4(f) property and thatFHWA undertook all possible planningto minimize harm to Section 4(f)property. When the agency determinesthat Section 4(f) is not applicable to aparticular resource, writtendocumentation of that decision should

be maintained as part of the project file.The project file should include allrelevant correspondence which mayinclude emails and other electronic

information that is applicable to thedecision-making process. The projectfile should generally be retained untilthree years after FHWA reimbursementon Federal-aid projects and three yearsafter final payment on non-Federal aidprojects (See FHWA Order M.1324.1A,49 CFR 18.42, and 49 CFR 19.53).

De Minimis Impact Determinations

The de minimis impact determinationmust include sufficient supportingdocumentation to demonstrate that theimpacts, after avoidance, minimization,mitigation, or enhancement measuresare taken into account, are de minimis

as defined in 23 CFR 774.17; and thatthe coordination required by 23 CFR774.5(b) was completed.

Information related to the de minimisimpact determination should beincluded in the project NEPA document(EA or EIS), or in the project file for aproject processed as a CE (See 23 CFR774.7(c)). Circulation of this informationin the project NEPA document maysatisfy the public involvementrequirements required for de minimisimpact findings. For projects whichinclude both de minimis impacts anduse of Section 4(f) property with more

than a de minimis impact, thedetermination and supporting datashould be included in a separate sectionof the Section 4(f) evaluation.

Applying Programmatic Section 4(f)Evaluations

Information related to an approval touse Section 4(f) property by applying aprogrammatic Section 4(f) evaluationshould be included in the project NEPAdocument (EA or EIS), or in the projectfile for a project processed as a CE. Forprojects which include both a

programmatic Section 4(f) approval anda use of Section 4(f) property for whichthere is more than a de minimis impact,information regarding the application ofthe programmatic Section 4(f)evaluation should be included in aseparate section of the Section 4(f)evaluation.

The project file should include

sufficient supporting documentation todemonstrate that the programmaticevaluation being relied upon applies tothe use of the specific Section 4(f)property. In addition, the project fileshould include documentation that thecoordination required by the applicableprogrammatic evaluation was completedand that all specific conditions of theapplicable programmatic evaluationwere met.

Individual Section 4(f) Evaluations

Individual Section 4(f) evaluationsmust include sufficient analysis and

supporting documentation todemonstrate that there is no feasible andprudent avoidance alternative and shallsummarize the results of all possibleplanning to minimize harm (23 CFR774.7(a)). For projects requiring a leastoverall harm analysis under 23 CFR774.3(c), that analysis must be includedwithin the individual Section 4(f)evaluation (23 CFR 774.7(c)).

Individual Section 4(f) evaluations areprocessed in two distinct stages: draftand final. Draft evaluations must becirculated to the U.S. DOI and sharedwith the official(s) with jurisdiction.The public may review and comment ona draft evaluation during the NEPAprocess. When a project is processed asa CE the Section 4(f) evaluation must becirculated independently to the U.S.DOI. In all cases, final Section 4(f)evaluations are subject to FHWA legalsufficiency review prior to approval (23CFR 774.5(d)).

Project Files

In general, the project file shouldcontain the following essentialinformation, with analysis, regardingSection 4(f): When making de minimis impact

determinations(1) Applicability or non-applicabilityof Section 4(f) to the park,recreation, refuge or historicproperty proposed to be used by theproject;

(2) Whether or not there is a use ofsection 4(f) property;

(3) Records of public involvement, orSection 106 consultation;

(4) Results of coordination with theofficials with jurisdiction;

(5) Comments submitted during thecoordination procedures required

by 23 CFR 774.5 and responses tothe comments; and

(6) Avoidance, minimization ormitigation measures that wererelied upon to make the de minimisimpact finding.

When applying programmatic Section4(f) evaluations

(1) Applicability or non-applicability

of Section 4(f) to the park,recreation, refuge or historicproperty proposed to be used by theproject;

(2) Whether or not there is a use ofsection 4(f) property;

(3) Records of public involvement, ifany;

(4) Results of coordination with theofficials with jurisdiction; and

(5) Documentation of the specificrequirements of the programmaticevaluation that is being applied.

When preparing an individual Section4(f) evaluation

(1) Applicability or non-applicabilityof Section 4(f) to the park,recreation, refuge or historicproperty proposed to be used by theproject;

(2) Whether or not there is a use ofSection 4(f) property;

(3) Activities, features, and attributesof the Section 4(f) property;

(4) Analysis of the impacts to theSection 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 impactscaused by avoiding the Section 4(f)property;

(8) A least overall harm analysis, ifappropriate;

(9) All measures undertaken tominimize harm to the Section 4(f)property;

(10) Comments submitted during thecoordination procedures required

by 23 CFR 774.5 and responses tothe comments; and

(11) Results of the internal legalsufficiency review.

Administrative Records

If a Section 4(f) approval is legallychallenged, the project file will be the

basis of the administrative record thatmust be filed in the court for review.The administrative record will bereviewed in accordance with theAdministrative Procedure Act(APA),(5 U.S.C. 706 (2)(A)), which providesjudicial deference to U.S. DOT actions.Under the APA, the agencys actionmust be upheld unless it is arbitrary,capricious, an abuse of discretion, orotherwise not in accordance with law.



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The court will review the administrativerecord to determine whether FHWAcomplied with the essential elements ofSection 4(f). If an inadequateadministrative record is prepared, thecourt will lack the required Section 4(f)documentation to review and, therefore,will be unable to defer to FHWAsdecision, especially when a Section 4(f)

evaluation was not required. Whileagency decisions are entitled to apresumption of regularity and the courtsare not empowered to substitute theirjudgment for that of the agenc