**4(f) Meeting with Midwestern Divisions**

**Rosemont, Illinois**

**October 25, 2001**

**10:00 A.M. -- 2:00 P.M.**

## I. Introduction {#i.-introduction .unnumbered}

Cindy Burbank opened the meeting by noting that this 4(f) workshop is
the fourth in a series to gather division leadership, environmental
coordinators, and representatives of state DOTs to discuss how we can
improve our implementation of 4(f). She said that it is a joint effort
between the Office of Environmental Planning and the Chief Council's
office and that both are committed to work with the divisions on this
issue.

In October 2000, a survey was coordinated of all the state DOT
environmental managers to identify delays in the environmental review
process. Fourteen reasons were identified with 4(f) ranking first. A
separate study indicated that the Section 4(f) process added an extra
two years to complete an EIS. Cindy declared that it our challenge is to
make 4(f) work better with less time and more common sense results.

Each member of the group was then asked to identify the major 4(f)
issues in their offices. These included:

1\) Section 106-4(f) duplication

2\) Application of 4(f) to multi-use properties acquired with Pittman
Roberts Dingle Johnson funds

3\) Historic bridges, as well as rural historic districts

4\) The need for common sense in the 4(f) process

5\) Application of 4(f) to rivers designated as "recreational"

6\) Better understanding of 4(f)

Cindy observed that the overlap of Section 106 and 4(f) seemed to be the
most common problem issue identified in the 4(f) process and wondered
why there was not a better fit in documenting these two processes. She
was surprised that no one mentioned the Interstate eligibility issue as
it is something we need to think about. She noted that the 4(f) statute,
as enacted by Congress, is one of the most stringent standards we have,
second only to the Endangered Species Act. The statute itself sets a
very high standard, and the courts have set the bar high as to how we
implement that standard. However, there are things we can do better as
far as timeliness and common sense application. She said that our goal
is to get a better handle on 4(f) and how it can be administered more
effectively and to identify options for improvements to the process.
These could include information sharing, case studies, and changes to
the regulations or statute. She said that FHWA is open to these changes.

## II. Issues/Case Studies {#ii.-issuescase-studies .unnumbered}

Fred Skaer identified the goals of the workshop as developing a better
understanding of 4(f) and identifying opportunities for more common
sense outcomes of the process. He said that we need to focus better on
our responsibilities under the law and inherent flexibility in the law
itself. He said that given the wide variety of experience with 4(f) we
should build on thoughts and ideas of others, including the combined
suggestions from the past three meetings (these were distributed as a
handout). Fred requested that the participants give examples of some
specific problems that 4(f) has presented from project experience or
from the examples developed during the previous 4(f) meetings. These are
outlined below.

# Problem: 4(f) documentation is too involved

Examples: Wisconsin discussed a late discovery situation on an EIS
project which led to an entire new round of documentation which had to
be redone, repackaged and sent to the Department of the Interior for a
45 day review. After waiting 90 days, DOI declined to comment. If it had
not been a late discovery, it would have been included in the EIS.

On an Iowa project, most of the 4(f) resources were acquired and
demolished after the initial 4(f) review requiring revision and
resubmission of the documentation.

Ron Moses noted that Midwestern Legal Services hasn't had disagreements
with the divisions on the level of documentation, although in some cases
they have determined that a specific property under consideration is not
subject to 4(f). A case was mentioned where FHWA was challenged on the
Kickapoo Valley reserve. It was agreed that the valley was a multi use
property, but that the uses could not be distinguished and, therefore,
that 4(f) was not applicable.

Tim Hill, now with Ohio DOT, has experience working in two different
states and noted that PA required extensive documentation while Ohio's
approach had been avoidance of 4(f) resources, which in some cases led
to poor decisions. Ohio has decided to re-engineer the process, which
should lead to more common sense decisions. He said that we are prepared
to "go through the barn if it makes sense."

Ron Moses noted that in the past Ohio avoided everything resulting in a
mitigated EA as all environmental consequences were avoided. They won a
court challenge to that approach, but the judge said they needed to do
an EIS in the future. Gerry Kennedy noted that avoidance of 4(f)
resources at the expense of all other resources was not good balancing.

### Problem: 4(f) decision defy common sense

Larry Heil suggested that 4(f) was more stringent that the Endangered
Species Act in leading to decisions that defy common sense. As an
example he presented the case where an owner says he will tear down a
structure and the building is torn down anyway.

Jackie Lawton noted that finding an alternate that avoids all 4(f)
impacts is often difficult with linear resources. There is no way to
avoid crossing a trail for example without going over to the next
valley. She said that identifying the non 4(f) alternative can be a
"tortured waste of energy."

Tim Hill brought up a case where park avoidance took 10 feet from the
front of a row of homes rather than a small linear section of the park.
He said that this was not the right decision, but it was "easier to walk
over people than over the grass."

Tim Hill suggested that level of detail was a particular concern of
small projects with small budgets. He said they should not need to
develop detailed designs in order to make the argument that only a small
piece of property is needed. When the locals are actually in agreement
that the action would not take a significant part of a resource, 4(f)
should not apply.

### Problem: 4(f)-106 mismatch

Gerry Kennedy brought up the Section 106 and 4(f) mismatch noting that
106 was a good, solid process to address historic properties. While the
Section 106 process is not seen as "easier," once that process had been
concluded, there is no sense in duplicating the effort. Scott McGuire
added that for the Spring-Sandusky project, the 4(f) documentation added
three months to the project approval process after the issues had
already been worked out during the course of the Section106 process. Tim
Hill suggested that Section 106 offers a better protection to the
resource than 4(f) as 106 provides for mitigation for indirect as well
as direct effects.

Gerry Kennedy said with unoccupied rural properties in Iowa, the SHPO
would rather have a chance to document the property, since the future of
those properties is questionable. This is especially concerning since in
the 4(f) process this does not include documentation of historic
resources.

**Problem: Enhancements and 4(f):**

Jackie Lawton remarked that Wisconsin used the PA a lot, eliminating
issues with enhancements and 4(f).

Tim Hill then asked "if TE funds were used for former projects, such as
bike trails, was the property now in transportation use or recreational
use for purposes of 4(f)?" The response was that it is a transportation
facility if we retain access to it and may have dual use as it may be
used for bikes as well.

Scott McGuire suggested that while the 1994 guidance on TE was useful,
it needed to be updated.

# Problem: 4(f) increases time for an EIS 

Jackie Lawton suspects that the Section 106 process adds time between
determinations of eligibility and effects, negotiation toward an MOA,
and limited archeology seasons. Working through the additional steps of
a 4(f) could add even more time.

Ed Kosola would question the two-year timeframe. In his state (Nebraska)
the problem is often poorly qualified consultants fighting requirements
rather than working through the process. He has seen people not
qualified to do environmental documents working on National Historic
Landmark properties.

Gerry Kennedy believes the key is knowing about issues early so you can
set project schedules with an awareness of what is out there as opposed
to working through an unrealistic schedule. In Ohio, 2 years to 14
months is probably reasonable with a lot of time devoted to talking,
coordinating and then the review time between DOT and FHWA.

**III. Why is there a 4(f) problem?**

Harold Aikens answered this question by providing some background
regarding the origins and evolution of 4(f).

The 4(f) Statute was passed in 1966 and was often called the Parklands
statute because it was created in response to a lot of state highway
projects connecting the dots and going through parklands as the least
expensive way of building a project. Congress felt if you are using
Federal-aid you should limit this type of use. The Overton Park case was
argued before the Supreme Court in 1971, and is the main precedent for
interpreting 4(f). The case dealt with a proposed 6-lane expressway
through Overton Park in Memphis, TN. The project would have severed the
342-acre city park destroying 26 acres of parkland and severing the zoo
from the rest of the park. The Court thought this was too much of a
loss. The case was based on the argument that the Secretary of
Transportation should be able to weigh impacts of alternatives to make a
reasonable decision based on degree of community disruption, even though
a certain level of disruption was common to highway projects. The court
agreed that these lands should not be used unless the community
disruption of not using 4(f) resources reaches extraordinary magnitude.

Courts of Appeals decisions since that time vary from one part of the
country to the other.

In 1976, the Druid Hills case established the "black box test" in the
5^th^ and 11^th^ circuits (Southeast). The black box test says that the
relative significance of the 4(f) resource cannot be considered and must
be avoided. If the resource cannot be avoided, the least harmful
alternative must be selected.

In the 1990s, the Eagle Foundation (IL) case looked at the accumulation
of minor impacts, including cost, safety, and impacts on other
resources. The case recognized that the accumulation of small impacts
could rise to the level of "not prudent and feasible" to not use the
resource, thereby justifying a 4(f) use.

Harold Aikens stressed not to be afraid of 4(f); there is some
flexibility, but you will have to justify decisions with good
documentation. The decision cannot be arbitrary and capricious. 4(f)
often is used to stop projects whether the resource is of interest or
not. Consequently, the purpose and need for the project is very
important in justifying any decision and must be well defined and
address all issues raised. It does not have to be limited to only
traffic considerations and you can include other goals like use and
economic development. The Courts say a valid purpose and need should be
reasonable and articulate the reason you need to do what you need to do.

The important thing to remember is that the decision cannot be arbitrary
and capricious. You need to be able to document what you are going to do
and justify it to a reasonable person who does not know anything about
the case (like a judge). The main thing is that 4(f) is not a total
deterrent to your project, like the Endangered Species Act can be.
Section 106 only says you have to consider the resource; FHWA can
disagree and build the project. With 4(f) the agency must make a
determination that there is no feasible and prudent alternative and if
there is none, everything has been done to minimize harm.

# IV. Cumulative Impacts

After lunch, Harold Aikens turned the discussion to cumulative impacts
as part of 4(f). He said that if the no-build does not meet the purpose
and need, it can be thrown out. He also said that we need to look at
4(f) in terms of balancing. 4(f) puts a "thumb on the scale," therefore;
we need to load up the other side of the scale with an accumulation of
safety, wetlands, and other impacts. In order to get there we need to
have a well-defined purpose and need. A 4(f) resource will have to be
used if avoidance alternatives do not satisfy the purpose and need. Then
we need to look at minimization (i.e. small takes of park), balancing
what the impacts are going to be.

Harold Aikens said that everything is a risk, and that you cannot avoid
dealing with 4(f) just because you are afraid. He said just to confront
it. In the 7^th^ Circuit cumulative impacts together tip the balance so
you can use the resources. He said that you can usually use the
reasonable standard as long as you can show why you can't use the non
4(f) alternative.

Fred Skaer said that in our regulations that we incorporate the Overton
Park language, the wording of which is often interpreted differently. He
said that the National Trust has its own concept of "prudent," for
instance. Harold said that this is true, but in 4(f) determinations
context is important.

Fred Skaer asked how much documentation is enough. Harold Aikens said
that the best thing is to contact legal council early on to determine if
you even have a 4(f) issue.

Harold Aikens said that legal sufficiency insures that all the issues
have been addressed. Fred Skaer added that the standard for legal
sufficiency call for adequacy, not excellence. Cindy Burbank added that
legal sufficiency review is important if we have a weak case that may
set a new standard as this can have major impacts on all states. She
said that we need to look at what the ultimate impact will be if we lose
a case.

# V. Opportunities 

1.  Training

    a.  4(f) class by legal

    b.  Web based training

    c.  CD, video based training

    d.  Cases studies-common sense examples

    e.  Testing for consultants and staff

    f.  Have a "go to person" on what constitutes a "use"

    g.  Consultant workshops

    h.  Local government "just-in time" training

    i.  Include 4(f) training for consultants in historic preservation

    j.  Training for resource agencies

    k.  Update 4(f) policy paper

2\. Programmatic Approaches

a.  PA approach developed by Ohio-delegate applicability to the state

b.  4(f) exemption if Section 106 satisfied

c.  Crossing linear corridors

3\. Sections 106 and 4(f)

a.  Multi-purpose use documentation

> 4\. Regulatory/Legislative Changes

a.  Valuation of resource by owner factored into significance

b.  Officials with jurisdiction determining significance

c.  Take the Overton Park language out of 4(f)

d.  Clarification of cost as consideration

e.  Define 144(o) in light of ISTEA-TE; what is prudent?

f.  Limit historic sites to National Register listed properties

Cindy thanked everyone for coming to the meeting. She said that this has
been the best session thus far and has helped her gain a better
understanding of what kinds of issues Midwestern states are dealing
with. She said that we will be looking at what suggestions we can move
forward including developing increased flexibility, and training in 4(f)
in order to make the process work better.