**Section 4(f) Streamlining Meeting Minutes**

**Southern Resource Center Geographical Area**

**FHWA Headquarters, Room 4438-4440**

**Washington, D.C.**

**May 23, 2001**

**10:00 A.M.-2:30 P.M.**   

I. Introduction 

Cindy Burbank began the meeting by making the following three points
concerning the 4(f) process:

1)  Streamlining the 4(f) process is a priority for DOT and Congress.
    AASHTO has said this is the number one environmental streamlining
    issue that needs to be addressed. A study funded by FHWA indicated
    that 4(f) documentation adds at least two years to the completion of
    an EIS.

2)  The purpose of the meeting is to understand the issues underlying
    4(f) and look for common sense solutions such as
    regulatory/statutory changes and/or administrative changes.

3)  Headquarters, Divisions, and state DOTs all need to work together to
    find solutions to 4(f) challenges.

Ed Kussy said that the thrust of the discussion should focus on
identifying flexibility in 4(f) as it stands. He then provided some
history and background concerning 4(f). He said 4(f) was enacted in the
mid 1960s in response to highway construction in urban areas, where
parkland was generally chosen instead of "well settled neighborhoods."
This was seen as a reasonable choice, given that using parkland would
not result in people being relocated. But as a result of this
philosophy, urban parkland became scarce. At this time the
administrative process for documenting 4(f) was much less stringent,
with no clear rules for documentation. Ed Kussy noted that legal
sufficiency-a very stringent set of standards- resulted from the 1971
Supreme Court ruling on the Overton Park case. Since then there have
been numerous Court of Appeal rulings. These rulings are only binding in
the general location of the circuit court (advisory elsewhere), thus the
4(f) standards are not consistent throughout the country.

Currently, the Southeast (5^th^ and 11^th^ Circuits) has the most
rigorous standard. This standard is called the "black box test," with
the area inside the box representing the 4(f) resource(s). This test
includes two steps. First, the 4(f) resource must be avoided completely
without considering the level of significance/value of the resource. A
road can only penetrate the 4(f) resource if the avoidance
alternative(s) is truly unusual (i.e it impacts a comfortably integrated
neighborhood, there is outrageous cost etc.) Second, if avoiding the
4(f) resource is not feasible and prudent, the different alternatives
that impact the 4(f) resource must be ranked. The alternative that
mitigates harm to the resource the greatest must then be chosen without
considering impacts to areas "outside the box." According to Kussy, this
"black box" standard makes 4(f) an extremely rigid law.

Ed Kussy suggested that the best way to get around the rigid standard in
the Southeast is to try finding areas of inherent flexibility within
4(f) as it currently stands. He argued that 4(f) is a "Holy Grail" to
environmentalists and any attempt to make statutory or regulatory
amendments will be met with steep resistance. He said that "it may be
feasible to talk about such changes, but not prudent." Cindy Burbank
added that it is important to find solutions quickly as the Interstate
System will soon become eligible for the National Register with
important implications under both 4(f) and Section 106.

## II. Issues/Case Studies

Lamar Smith asked the group if in their experience, the 4(f) the process
either: 1) resulted in poor decision making; 2) presented special
challenges; or 3) added more time to the NEPA process. Lamar then asked
the group if there were any other issues or topics that they wanted to
discuss during the meeting.

Olivia Michael said that she was interested in education and training.
Jim Erickson also felt that this was important, as many of the agencies
he works with have no understanding of 4(f). Carol Adkins added that
consultants have little knowledge about 4(f) and also need training. She
said that explaining this process to them is time consuming and costly.
Joe Wilkerson expressed similar sentiments for the need to train
consultants.

Cecil Vick asked about combining Section 106 and 4(f); Cindy Burbank
mentioned that AASHTO was working on this issue.

Joe Wilkerson mentioned that his main issue in Alabama regards privately
owned structures. He said that frequently 4(f) protects historic
structures that owners never intend to preserve and that are often in
poor condition. He said that Section 106 was a more reasonable process
and that the SHPO will often consider details such as the likelihood of
preservation when making decisions. He expressed a great deal of
frustration with the 4(f) process as it goes against common sense. He
called for FHWA to create a Nationwide 4(f) PA for historic structures
similar to the Nationwide 4(f) PA for historic bridges currently in
place and said that the SHPO is also interested in this.

Cecil Vick asserted that historic properties create the greatest problem
in 4(f) evaluations. He suggested that like the 4(f) provision for
archaeological sites, historic sites should not be considered 4(f)
resources if they have value for information alone. Harold Aikens
responded that this was an interesting idea that should be further
explored. Ed Kussy agreed, but cautioned that plenty can be accomplished
without changing 4(f).

Larry Dreihaup added that in the language of 4(f) the word "prudent" has
come to mean "impossible." He then asked Ed Kussy about changing
"prudent and feasible" to language that would be clearer and easier to
understand. Bob Mahoney said that "extraordinary magnitude" was also
unclear and should be changed. Kussy responded by saying that while you
can interpret the law and try to change the regulations or statutes, a
Court of Appeal ruling is binding and cannot be changed.

Antonio Palacios asked about "significance" in 4(f). He asked, " if the
owner of a park says that the resource is not significant, is this
enough documentation on the significance issue?" He expressed the need
for guidance in this area. Jim Erickson later asked a similar question.

Lamar Smith then asked the entire group if documentation was a problem.
Most of the group nodded yes. Olivia Michael said that they need
guidance on what was minimally needed for 4(f) documentation. She said
that the state sees the paperwork involved as a burden. She needs to
know what is needed for small vs. large projects so she can communicate
this to her customers. Olivia also wanted to know what should be
included in a scope of service. She again expressed the need for minimum
documentation standards.

## III. Flexibility

Ed Kussy made two main points concerning flexibility in 4(f):

1)  Significance definition- significance can be a difficult point to
    argue, but there is some give. For instance, if land is publicly
    owned, you cannot carve out an insignificant part of a significant
    parkland. However, for multi-use property, parts of the land that do
    not have a 4(f) use (i.e. that are not used for recreation) are not
    classified as 4(f) properties. States have similar provisions for
    public land, but for historic properties the Keeper's determination
    is binding. However, 4(f) does allow an agency official to disagree
    with the decisions made by state or local officials concerning
    National Register (NR) eligibility and local significance. These
    local determinations are almost never questioned.

2)  The courts are looking for a proper test of the law---they want to
    know that the agency complied with 4(f) and understands all of the
    legal standards (including other environmental laws) that have been
    applied in reaching a decision. The courts will understand the use
    of a 4(f) resource if documentation clearly indicates other stronger
    considerations. In the Northeast, if avoiding a 4(f) property means
    use of other resources such as important wetlands, Environmental
    Justice (E.J.) issues etc., then the use of a 4(f) property will not
    be questioned. In the Southeast the use of 4(f) resource can be
    argued by exercising the "black box" test and setting forth
    arguments for protecting non-4(f) resources.

Harold Aikens and Ed Kussy both pointed out that in setting forth an
argument for a 4(f) use, documentation cannot focus on the integrity of
the resource or making conclusionary statements regarding its future
use. Arguments presented in this manner will not pass legal sufficiency,
since the 4(f) standard has not been applied. For instance, if a private
property owner of a NR eligible barn intends to tear down the barn in
the near future, this may appear to be the most important (and most
common sense) point to address, but it is not relevant in documenting
4(f) use. The 4(f) documentation needs to focus instead on the impacts
that will result from **not** using the 4(f) property. All of these
concerns, (i.e. safety, E.J. issues, cost, geometrics, other agency
concerns, etc.) need to be added to the other side of the balance to tip
the scale of importance in favor of these combined resources/concerns
over the 4(f) resource. According to both Aikens and Kussy, the courts
will uphold this kind of argument. Aikens pointed out that support from
other agencies is key to winning court battles in 4(f) cases.
Information regarding the integrity of a 4(f) resource (i.e owner says
barn will be torn down) also needs to be included in 4(f) documentation,
but cannot be part of the legal argument itself (Pam Stephenson later
added that this information is important in determining minimization).
Kussy noted that courts will look to see that there has been a prudent
use of a 4(f) resource and that this decision was not "arbitrary and
capricious." He said that FHWA wins most 4(f) cases that are litigated.

Bob Mahoney questioned what constitutes "extraordinary magnitude." Ed
Kussy responded by saying that the legal standard is that there is "no
feasible and prudent alternative." You must list the impacts associated
with avoidance and conclude that those impacts are extraordinary and
unusual in the context of the project. As an example he explained that
moving families from 3 or 4 homes to avoid an unimportant park is not
extraordinary. You must document many effects such as safety, loss of
community development, wetlands etc. in order to justify using the 4(f)
resource. Harold Aikens later added that extraordinary magnitude is a
contextual issue. Overton Park was a huge project; smaller projects are
considered differently.

Bob Mahoney said that other agencies that he works with have different
perceptions about what is reasonable. Joe Wilkerson added that in
Alabama, the economic development argument does not always work.

Ed Kussy explained that the project purpose and need statement is also
crucial in 4(f) documentation. Any alternative used to avoid a 4(f)
resource must be prudent and feasible. Courts recognize that FHWA builds
roads to respond to problems and are responsive to this need. If the
avoidance alternatives do not meet the purpose and need, courts will
understand this as an important factor in 4(f) evaluation. Harold Aikens
added that the purpose and need statement can include a number of items
such as the need for infrastructure to meet a state's development
agenda.

Cindy mentioned that the Eastern Divisions said they wanted case studies
on use of flexibility in 4(f). She asked them to send in examples, but
has not received many. She requested additional case studies from the
group and suggested the need to create some hypothetical case studies
based on the issues that have been discussed and key questions that have
been asked.

## IV. Legal Sufficiency

Ed Kussy asked the group what kinds of problems they have addressed
regarding legal sufficiency. Kussy said that he met with the Southern
Resource Center legal staff two years ago concerning legal sufficiency
review and said the process is working well with some exceptions. He
said reviews across the country are conducted at different stages of
report completion ranging from pre-draft phase to the final; but said
that it is best to conduct the review at the pre-draft stage. Kussy said
that legal sufficiency review was an easy process as long as the 4(f)
documentation is sound, logical and well written. Kussy said that his
office is looking into training for legal teams across the country. He
said that different states have different needs, depending on the size
of their programs.

Larry Dreihaup asked if an agency official is required to accept the
legal advice offered by FHWA legal counsel. Kussy said that the FHWA
Division Administrator has the authority to approve a document
regardless, but that the agency needs to abide by the law. An agency
cannot approve a project if it is contrary to law; in this case, the
project should be elevated. Normally, the legal team reviewing a
document will advise the Division how to make the document legal. Kussy
suggested to the group that they routinely schedule periodic meetings
with their legal teams to discuss specific projects.

## V. Opportunities

Lamar Smith asked the group to address 5 categories regarding new
opportunities for addressing 4(f):

1)  Training/Guidance

2)  New Programmatic Agreements

3)  Section 106 Nexus

4)  Regulatory Reform

5)  Statutory Changes

# Training and Guidance

The main training issues that were suggested are to:

1)  Schedule regular meetings with legal teams to discuss projects

2)  Construct 4(f) web site\*

3)  Do mini-training modules

4)  Use video, visual images to show legal staff projects

5)  Train consultants; develop a certification program

6)  Develop a question and answer brief on 4(f) court cases

7)  Have regional workshops similar to this meeting

8)  Develop a one page fact sheet on 4(f)

9)  Develop training in people skills/public relations

\*Note-Lamar Smith indicated that FHWA already has a web site with an
open discussion (or community of practice) that includes Section 4(f)
(Lamar answers most of the questions himself). This site is located at
<http://nepa.fhwa.dot.gov/ReNepa/ReNepa.nsf/home> .

# 

# Programmatic Approaches

Suggested approaches:

1)  Develop Programmatic 4(f) one state at a time to exempt privately
    owned historic structures with no plans for preservation

2)  Programmatic 4(f) for crossing linear corridors such as RR corridors

3)  Programmatic 4(f) for transportation Enhancement Projects and like
    projects including

Congestion Mitigation and Air Quality

4\) Develop a Programmatic 4(f) to conduct context studies; systematic
surveys; treatment by property type

Suggested changes:

# Section 106 Nexus

1)  Integrate 4(f) and Section 106

2)  Use 4(f) outcome to satisfy Section 106

3)  Define a "No Adverse Effect" as a no 4(f) use even if there is a
    4(f) use (minor)

# Regulatory and Legislative Changes 

1)  Reexamine the Overton Park language and revise using phrases that
    are more easy to define (eliminate "extraordinary magnitude" etc.)
    and redefine these terms in the context of our modern world

2)  Make distinction in the regulations based on types of projects (eg.
    new alignment vs. upgrade existing); minor projects should be
    exempted from 4(f)

3)  Allow consideration of the current use and significance of a
    resource

4)  Remove "historic properties" from 4(f)

5)  Make 4(f) only apply to publicly owned historic properties

9\) Create language whereby historic structures are eligible for
information potential only

# 

**VI. Wrap Up**

Cindy thanked the group for their input and once again asked for their
help in developing case studies and guidance for states. She said that
she hoped to hear from the group with additional suggestions. Cindy also
mentioned that Tim Penney is the National FHWA Native American
Coordinator while Vivian Philbin has been appointed the FHWA National
Legal Expert regarding Native American issues. The meeting was adjourned
at 2:30 P.M.