# Presentation: 237443

## Section 4(f) TrainingMay 2005

- Presented by: 		Sharon P. Love, P.E. 		Environmental Program Manager		FHWA Washington Division

## Today’s Agenda	

- Context for the Section 4(f) process
- Basics of Section 4(f)
- Section 4(f) resources / properties and applicability criteria
- Use and impact (use vs. impact)
- Examples of 4(f)resource applicability
- Feasible and prudent avoidance
- Minimization of harm and mitigation
- Evaluation and documentation

## Section 303 Title 49

- The secretary may approve projects requiring the use of publicly owned land of a public park, recreation area, or wildlife/waterfowl refuge, or land of a historic site of national, state, or local significance (as determined by the officials with jurisdiction) only if-
**There is no feasible and prudent alternative to such use**, and
**The project includes all possible planning to minimize harm**

## Context

- Which came first ...
- ... NEPA or Section 4(f)?
- Are you familiar with the FHWA/FTA transportation decisionmaking process?
- Have you heard of the umbrella approach to environmental compliance?

**Notes:**
Section 4(f) predates NEPA.

Section 4(f) was part of the DOT Act of 1966 
NEPA was passed in 1969 and signed in 1970.

NEPA is a key component of the FHWA/FTA transportation decisionmaking process, along with the planning regulations. The NEPA process is used as an ‘umbrella’ to include all of the various aspect of environmental regulation.

## Section 4(f) Background

- From a proposed highway project impacts to Brackenridge Park in San Antonio, TX
- Provision of the DOT Act of 1966
- Feasible and prudent standard defined by the Overton Park court decision
- Implementation influenced by court decisions

**Notes:**
The proposed project, which would have destroyed Brackenridge Park in San Antonio was the specific incident that led to the passage of Section 4(f) as part of the DOT Act of 1966.  Subsequent case law has shaped the implementation of Section 4(f), most notably the Overton Park court decision which set the feasibility and prudence standards. Since then other case law has further refined the interpretations of the statute.

## Section 4(f) Basics

- Actions of US DOT Agencies - **ONLY**
- US DOT the resource / regulatory authority
- Requirements include:
- Alternatives analysis
- Avoidance, minimization, and compensation
- Coordination and consultation
- Documentation and process
- Findings
- Procedural or substantive law?

**Notes:**
Section 4(f) applies only to US DOT agencies, and the US DOT is responsible for enforcement of the regulation.

As we discussed earlier, section 4(f) requires alternatives analysis, avoidance, minimization and compensation, and coordination and consultation, all of which must be documented. 

Unlike Section 106 and NEPA, Section 4(f) is a substantive, rather than procedural law.

By this I mean that the outcome is prescribed in the Section 4(f) law – avoidance of the impact – rather than just the procedure to be followed in Section 106.

## Section 4(f) References

- Legislation
- 49 USC 303 (transportation)
- 23 USC 138 (highways)
- Regulation
- 23 CFR 771.135 (FHWA and FTA)
- Guidance
- FHWA Policy Paper
- Re:NEPA Community of Practice (http://nepa.fhwa.dot.gov)
- www.environment.fhwa.dot.gov

**Notes:**
The citations on this page are all included in your notebook, with the exception of the website links.  Re:NEPA is a very helpful website which allows for sharing of information about anything related to NEPA.

## Section 4(f) Web References

- CD and website (_[www.section4f.com](http://www.section4f.com/)__)_
- FHWA HQ Section 4(f) Guidance Website _[http://environment.fhwa.dot.gov/projdev/PDsec4f.htm](http://environment.fhwa.dot.gov/projdev/PDsec4f.htm)_
- Section 4(f) Policy Paper (revised in March 2005) _[http://environment.fhwa.dot.gov/projdev/4fpolicy.htm](http://environment.fhwa.dot.gov/projdev/4fpolicy.htm)_
- Programmatic 4(f) Evaluations _[http://environment.fhwa.dot.gov/projdev/4fnspeval.htm](http://environment.fhwa.dot.gov/projdev/4fnspeval.htm)__ _

**Notes:**
The Section 4(f) Policy Paper in included in your notebook, along with the Programmatic Evaluations and excerpts from the FHWA guidance website. The graphics in later slides of this presentation are from the Section4f.com website, which was a collaboration between Maryland DOT and FHWA.

## Section 303 Title 49

- The secretary may approve projects requiring the use of publicly owned land of a public park, recreation area, or wildlife/waterfowl refuge, or land of a historic site of national, state, or local significance (as determined by the officials with jurisdiction) only if-
- There is no feasible and prudent alternative to such use, and
- The project includes all possible planning to minimize harm.

**Notes:**
This is the same slide of the regulation we looked at earlier.  Now we are going to break it down to look at the individual terms which are the key to understanding this regulation.

## Section 4(f) Essentials

- Properties / resources ...
- ... parks, recreation areas, wildlife and waterfowl refuges, and historic properties with qualities that satisfy specific criteria
- Not all parks, recreation areas, wildlife and waterfowl refuges, or historic properties are section 4(f) resources

**Notes:**
We’ll first go through the essential terms and they expand upon them further.  First is the essential question of what resources are subject to Section 4(f)?

We’ll discuss in a few minutes what the exceptions are to Section 4(f).

## Section 4(f) Essentials

- Use – incorporation of land
- impacts do not always equate to use
- Section 4(f) standard (approval criteria)
- no feasible and prudent avoidance alternatives
- all possible planning to minimize harm
- Evaluation, coordination, documentation, review requirements, and findings

**Notes:**
The term “use” is very essential to understanding section 4(f).  This really is focused on the incorporation of land from the Section 4(f) property into the project.  “Use” is not the same as “impact” in this sense – there are many ways to impact a property that do not require use of land from that property (e.g. noise, vibration, air quality).  These impacts are not section 4(f) uses in most cases.  We’ll get into a discussion of the exceptions to that in a few minutes when we talk about “constructive use”, but for now let’s stick with the clear-cut definition of “use” – the taking of property.

The objective in Section 4(f) is to avoid use of the resource, so the standard to be met if this is not possible is to show that there is no feasible and prudent alternative to the use of the resource.  Once that standard is met there is also a requirement that the project include all possible planning to minimize harm.

Finally, all of this must be documented, and the documentation must include coordination with the official with jurisdiction over the park.

## 4(f) Applicability Criteria

- Parks and recreation areas
- Publicly owned
- Public park
- Major purpose for park or recreation
- Significant resource

**Notes:**
If the park is open to all the public, it can be 4(f), even if there is a nominal admission charge.  Fairgrounds are often a question – see question 9 in the policy paper – if they are primarily commercial, they are not subject to 4(f).  If they are open to the public the rest of the year when the fair isn’t happening they may be considered subject to section 4(f).

The official with jurisdiction will determine the significance of the resource.

## 4(f) Applicability Criteria

- Wildlife and waterfowl refuges
- Publicly owned
- Major purpose for refuge purposes
- Significant property
- Historic property
- On or eligible for National Register of Historic Places

## Public Ownership

- Parks, recreation areas, and wildlife and waterfowl refuges
- Fee simple ownership
- Permanent easement
- Temporary easement
- Lease agreement
- Not a criteria for historic properties

- Policy Paper - Q. 2A & 2D

**Notes:**
2.  Public Parks, Public Recreation Areas and Wildlife and Waterfowl Refuges
Question A:  When is publicly owned land considered to be a park, recreation area or wildlife and waterfowl refuge and who makes this determination?
Answer A:  Publicly owned land is considered to be a park, recreation area or wildlife and waterfowl refuge when the land has been officially designated as such by a Federal, State or local agency and the officials of these governmental entities, having jurisdiction over the land, determine that one of its major purposes and functions is for park, recreation or as a refuge.  Incidental, secondary, occasional or dispersed park, recreational or refuge activities do not constitute a major purpose.
For the most part the "officials having jurisdiction" are the officials of the agency owning or administering the land.  There may be instances where the agency owning or administering the land has delegated or relinquished its authority to another agency, via an agreement on how some of its land will function or be managed.  FHWA will review this agreement and determine which agency has authority on how the land functions.  If the authority has been delegated or relinquished to another agency, that agency must be contacted to determine the major purpose(s) of the land.  Management plans that address or officially designates the major purpose(s) of the property should be reviewed as part of this determination.  After consultation, and in the absence of an official designation of purpose and function by the officials having jurisdiction, FHWA will base its decision on its own examination of the actual functions that exist.
The final decision on applicability of Section 4(f) to a particular property or type of land is made by FHWA. In reaching this decision, however, FHWA will rely on the official having jurisdiction over the resource to identify the kinds of activities and functions that take place, and that these activities constitute a major purpose.  Documentation of the determination of non-applicability should be included in the environmental document or project record. 

Question D:  When does an easement or lease agreement with a governmental body constitute "public ownership”?
Answer D:  Case law holds that land subject to a public easement in perpetuity can be considered publicly owned land for the purpose the easement exists.  Under special circumstances, lease agreements may also constitute a permanent and proprietary interest in the land.  Such lease agreements must be determined on a case-by-case basis and such factors as the term of the lease, the understanding of the parties to the lease, cancellation clauses and the like should be considered.  Any questions on whether or not the leasehold or other interest constitutes public ownership should be referred to the Federal Highway Administration Division Office, and if necessary the FHWA Division Office should consult with the Washington Headquarters Office of Project Development and Environmental Review and the Office of the Chief Counsel.

## Public Park

- Access to the resource
- Entire public permitted access to park or recreation area (during normal operating hours)
- Visitation is not limited to a select group(s)
- Not an absolute criteria for refuges

- Policy Paper – Q. 2C

**Notes:**
Question C:  Are publicly owned parks and recreation areas, which are significant but not open to the public as a whole, subject to the requirements of Section 4(f)?
Answer C:  The requirements of Section 4(f) would apply if the entire public park or public recreation area permits visitation by the general public at any time during the normal operating hours of the facility. Section 4(f) would not apply when visitation is permitted to only a select group and not the entire public.  Examples of select groups include residents of a public housing project; military and their dependents (see also Question 11 B); students of a school; and students, faculty, and alumni of a college or university.  FHWA does, however, strongly encourage the preservation of such parks and recreation areas; even though they may not be open to the general public.
It should be noted that wildlife and waterfowl refuges have not been included in this discussion.  The statute uses the modifying term public to parks and recreation areas and, therefore, the "open to the public" requirement only applies to park and recreational area lands.  Many wildlife and waterfowl refuges allow public access, while others may not, especially during certain times or seasons of the year.  In these cases, the publicly owned resource should be examined by the FHWA Division Office to determine that the primary purpose of the property and resource is for wildlife or waterfowl refuge and not for other non-Section 4(f) activities (see also Question 20).

## Major Purpose

- Primary function of the property ...
- ... is for park, recreation, or refuge purposes or activities
- Activities are other than ...
- ... incidental, secondary, occasional, or dispersed

- Policy Paper – Q. 2A

**Notes:**
2.  Public Parks, Public Recreation Areas and Wildlife and Waterfowl Refuges
Question A:  When is publicly owned land considered to be a park, recreation area or wildlife and waterfowl refuge and who makes this determination?
Answer A:  Publicly owned land is considered to be a park, recreation area or wildlife and waterfowl refuge when the land has been officially designated as such by a Federal, State or local agency and the officials of these governmental entities, having jurisdiction over the land, determine that one of its major purposes and functions is for park, recreation or as a refuge.  Incidental, secondary, occasional or dispersed park, recreational or refuge activities do not constitute a major purpose.

## 4(f) Significance

- Parks, recreation areas, wildlife and waterfowl refuges
- Considers the availability and function of the resource in terms of the objectives of the agency with jurisdiction
- The property/resource plays an important role in meeting those objectives

- Policy Paper – Q. 2B

**Notes:**
Question B:  How should the significance of public parks, recreation areas and wildlife and waterfowl refuges be determined?
Answer B:  "Significance" determinations, on publicly owned land considered to be parks, recreation areas or wildlife and waterfowl refuges, pursuant to Answer 2 A above, are made by the Federal, State, or local officials having jurisdiction over the land.  As discussed above, the "officials having jurisdiction" are officials of the agency owning or administering the land.  For certain types of 4(f) resources, more than one agency may have jurisdiction or interest in the property. 
Except for certain multiple-use land holdings, discussed in Question 6, significance determinations must consider the entire property and not just the portion of the property proposed for use by the project.  The meaning of the term "significance”, for purposes of Section 4(f), should be explained to the officials having jurisdiction.  Significance means that in comparing the availability and function of the park, recreational area or wildlife and waterfowl refuge, with the park, recreation or refuge objectives of the community or authority, the resource in question plays an important role in meeting those objectives.  Management plans or other official forms of documentation regarding the land, if available and up-to-date, are important in this determination.  If a determination from the official with jurisdiction cannot be obtained, and a management plan is not available or does not address significance of the 4(f) land, it will be presumed to be significant until FHWA reviews the determination and reaches a different conclusion.  All determinations, whether stated or presumed, are subject to review by FHWA for reasonableness.

## 4(f) Significance continued

- Parks, recreation areas, wildlife and waterfowl refuges
- Determined by the officials with jurisdiction
- Presumed significant in the absence of a determination
- Subject to review by FHWA for reasonableness
**Applies to the entire property**

## 4(f) Significance 

***  ****Be aware of two exceptions to this general rule**

**Notes:**
Note that the whole parcel, including the maintenance buildings and the parking, is subject to section 4(f).

The exceptions are multiple-use holdings and National Register sites eligible only for the data they contain.

## Public Multiple-Use Lands

- Policy Paper Q. 6

**Notes:**
Typically parks that are subject to section 4(f) have a clear recreational purpose, but some publicly owned land has multiple uses, for instance a National Forest with some land in timber production and other land devoted to campgrounds and trails. The campgrounds and trails are subject to section 4(f) while the lands being used for non-recreational purposes are not subject to Section 4(f).  The boundaries are usually established in the management plans for these properties.  If a clear plan does not exist then the DOT will have to work with the official with jurisdiction over the park to determine which areas are primarily recreational and therefore subject to Section 4(f).

6.  Public Multiple-Use Land Holdings
Question:  Are multiple-use public land holdings (e.g., National Forests, State Forests, Bureau of Land Management lands, etc.) subject to the requirements of Section 4(f)?
Answer:  Section 4(f) applies to historic properties (those on or eligible for the National Register of Historic Places) located on these multiple-use land holdings and only to those portions of the lands which are designated by statute or identified in the management plans of the administering agency as being primarily for park, recreation, or wildlife and waterfowl refuge purposes, and determined to be significant for such purposes.  For example, within a large multiple-use resource, like a National Forest, there can be areas that qualify as 4(f) property (e.g. a campground, picnic area, etc.) while other areas of the property function primarily for purposes other than park, recreation or refuges.  Coordination with the official having jurisdiction and examination of the management plan for the area are necessary to determine Section 4(f) applicability. 
For public land holdings, which do not have management plans or existing management plans are out-of-date, Section 4(f) applies to those areas that are publicly owned and function primarily for 4(f) purposes.  Section 4(f) does not apply to areas of multiple-use lands which function primarily for purposes other than park, recreation or refuges such as for those areas that are used for timber sales or mineral extraction in National Forests. 

## 4(f) Historic Property

- Individual historic property
- on or eligible for the National Register of Historic Places
- Archeological sites
- National Register eligible and important for preservation in place
- not significant for data recovery (information) only

- 23 CFR 771.135(e)  Policy Paper Qs. 3A, 3B

**Notes:**
Key is eligibility for the register.  Only exception is for arch sites valuable only for data recovery.

The archaeological sites that are not important for preservation in place are not subject to section 4(f).  Section 4(f) is very focused on resources which are on the landscape and have specific boundaries.  

3.  Historic Sites 
Question A:  How is the significance (for Section 4(f) purposes) of historic sites determined?
Answer A:  Pursuant to the National Historic Preservation Act (NHPA), the FHWA Federal Lands Highway Division (for Federal-lands projects) or FHWA Division in cooperation with the Applicant, i.e. State Department of Transportation (for Federal-aid projects) consults with the State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) and if appropriate, with local officials to determine whether a site is on or eligible for the National Register of Historic Places.  In case of doubt or disagreement between FHWA and the SHPO or THPO, a request for a determination of eligibility may be made to the Keeper of the National Register.  A third party may also seek the involvement of the Keeper through the Advisory Council on Historic Preservation (ACHP) for a determination of eligibility,
For purposes of Section 4(f), an historic site is significant only if it is on or eligible for the National Register, unless FHWA determines that the application of Section 4(f) is otherwise appropriate.  If an historic site is determined not to be on or eligible for the National Register, but an official (such as the Mayor, President of the local historic society, etc.) formally provides information to indicate that the historic site is of local significance, FHWA may determine that it is appropriate to apply Section 4(f) in that case.  In the event that Section 4(f) is found inapplicable, the FHWA Division Office should document the basis for not applying Section 4(f).  Such documentation might include the reasons why the historic site was not eligible for the National Register.

## Section 4(f) Applicability

- In historic districts, property that is
- individually historic, integral to, or contributing element of the district
- Locally historic property
- If determined by FHWA with appropriate and sufficient evidence
- National Historic Landmarks
- treated the same way other historic properties are treated, but FHWA should consider their importance and significance.
- Traditional culture properties
- on or eligible for the National Register
- Consultation with SHPO/THPO

- 23 CFR 771.135(e)  Policy Paper Qs. 3A, 3C, 3D

**Notes:**
The determination of eligibility is critical to determining whether section 4(f) applies. Only at the discretion of FHWA can Section 4(f) be applied to other resources, such as local historic sites.
3.  Historic Sites 
Question A:  How is the significance (for Section 4(f) purposes) of historic sites determined?
Answer A:  Pursuant to the National Historic Preservation Act (NHPA), the FHWA Federal Lands Highway Division (for Federal-lands projects) or FHWA Division in cooperation with the Applicant, i.e. State Department of Transportation (for Federal-aid projects) consults with the State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) and if appropriate, with local officials to determine whether a site is on or eligible for the National Register of Historic Places.  In case of doubt or disagreement between FHWA and the SHPO or THPO, a request for a determination of eligibility may be made to the Keeper of the National Register.  A third party may also seek the involvement of the Keeper through the Advisory Council on Historic Preservation (ACHP) for a determination of eligibility,
For purposes of Section 4(f), an historic site is significant only if it is on or eligible for the National Register, unless FHWA determines that the application of Section 4(f) is otherwise appropriate.  If an historic site is determined not to be on or eligible for the National Register, but an official (such as the Mayor, President of the local historic society, etc.) formally provides information to indicate that the historic site is of local significance, FHWA may determine that it is appropriate to apply Section 4(f) in that case.  In the event that Section 4(f) is found inapplicable, the FHWA Division Office should document the basis for not applying Section 4(f).  Such documentation might include the reasons why the historic site was not eligible for the National Register.
Question C:  How does Section 4(f) apply in historic districts on or eligible for National Register? 
Answer C:  Within a National Register (NR) listed or eligible historic district, Section 4(f) applies to the use of those properties that are considered contributing to the eligibility of the historic district, as well as any individually eligible property within the district.  It must be noted generally, that properties within the bounds of an historic district are assumed to contribute, unless it is otherwise stated or they are determined not to be.  For those properties that are not contributing elements of the district or individually significant, the property and the district as a whole must be carefully evaluated to determine whether or not it could be used without substantial impairment of the features or attributes that contribute to the NR eligibility of the historic district. 
The proposed use of non-historic property within an historic district which results in an adverse effect under Section 106 of the NHPA will require further consideration to determine whether or not there may be a constructive use.  If the use of a non-historic property or non-contributing element substantially impairs (see Question 2 B) the features or attributes that contribute to the NR eligibility of the historic district, then Section 4(f) would apply.  In the absence of an adverse effect determination, Section 4(f) will not apply.  Appropriate steps, including consultation with the SHPO and/or THPO, should be taken to establish and document that the property is not historic, that it does not contribute to the National Register eligibility of the historic district and its use would not substantially impair the historic district.
As an example, consider the situation where traffic signals are warranted in a National Register listed or eligible historic district.  The locations of the mast arms and control box are severely limited because of the built-up nature of the district.  Although no right-of-way will be acquired, it is consistent with the NHPA regulations that there will be an adverse effect on the historic district.  However, it may be reasonably determined that no individually eligible property, contributing element, or the historic district as a whole will be substantially impaired; therefore Section 4(f) will not apply.  
Question E:  How are National Historic Landmarks treated under Section 4(f)?
Answer E:  Section 4(f) requirements related to the potential use of a National Historic Landmark (NHL) designated by the Secretary of Interior are essentially the same as they are for any historic property determined under the Section 106 process.  Section 110(f) of the NHPA outlines the specific actions that an Agency must take when NHL may be directly and adversely affected by an undertaking.  Agencies must, "to the maximum extent possible ... minimize harm" to the NHL affected by an undertaking.  While not expressly stated in the Section 4(f) statutory language or regulations, the importance and significance of the NHL should be considered in the FHWA’s Section 4(f) analysis. 

## 4(f) and 106 Relationship

- National Register eligibility necessary for 4(f) applicability of historic  properties
- Adverse effect does not equal use
- Use is possible without adverse effect determination
- Section 106 MOA provides documentation of minimization of harm and of mitigation

- Policy Paper  - Q. 3B

**Notes:**
The definitions of Section 4(f) use – use of land from the property, and section 106 adverse effect – actions which harm the historical integrity or setting of a property, are very different, and while they may sometimes coincide, they don’t always.

Parks, recreation areas, and refuges are not so much of a problem - in general, applicability is pretty clear - or not ...
... but it is safe to say that we generally do not have the same sort of problems with these resources that we have with historic properties - why?
Part of the problem is that historic properties are also protected by another law - Section 106 of the National Historic Preservation Act ... and
... further complicated by (1) the reliance of Section 4(f) on the Section 106 process imposed by our regulations for the determination of 4(f) eligibility (significance) ... (and we say there is no relationship).
Because Section 106 and Section 4(f) are related by the significance  determination ...
... it is also sometimes assumed that there are other relationships between the two laws that do not exist - affects and use are two separate things.
Then there’s the redundancy factor ... where in it is believed that if Section 106 is OK (complied with) then the 4(f) is OK ... 
... this is a major mistake - 4(f) has very strict requirements (teeth) that 106 does not have.
When you put all of these things together we get what I call ... 
... the Section 4(f) / Section 106 dilemma.

Important points - 
- Section 106 adverse affect does not equal a 4(f) use - a use may not mean an affect or adverse affect determination
- the property boundary may be different than the historic boundary and Section 4(f) boundary, where from there is a use.
Question B:  Does Section 4(f) apply when there is an adverse effect determination under the regulations implementing Section 106 of the National Historic Preservation Act (NHPA) (36 C.F.R. 800.5)?
Answer B:  FHWA’s determination of adverse effect under 36 C.F.R. 800.5 (www.achp.gov/work106.html) does not mean that Section 4(f) automatically applies, nor should it be presumed that the lack of an adverse effect finding (no historic properties adversely affected) means that Section 4(f) will not apply.  When a project permanently incorporates land of an historic site, with or without an adverse affect, Section 4(f) applies.  However, if a project does not physically take (permanently incorporate) historic property but causes an adverse effect, one must assess the proximity impacts of the project in terms of the potential for “constructive use”  (see also Question 1 B).  This analysis must determine if the proximity impact(s) will substantially impair the features or attributes that contribute to the National Register eligibility of the historic site or district.  If there is no substantial impairment, notwithstanding an adverse effect determination, there is no constructive use and Section 4(f) requirements do not apply.  Substantial impairment should be determined in consultation with the SHPO and/or THPO and thoroughly documented in the project record.  The determination of Section 4(f) applicability is ultimately FHWA's decision.
As an example of a situation in which there is a Section 106 adverse effect but no Section 4(f) use, consider a transportation enhancement project where an abandoned National Register listed bus station will be rehabilitated.  Rehabilitation for public use will require consistency with the American with Disabilities Act (ADA).  The incorporation of ramps or an elevator will meet the definition of an adverse effect, however, there is no permanent incorporation of land into a transportation facility and all parties agree that the rehabilitation will not substantially impair the property. Therefore, Section 4(f) would not apply. 
An example of a Section 4(f) use without a Section 106 adverse effect involves a project on existing alignment, which proposes minor improvements at an intersection.  To widen the roadway sufficiently, a small amount of property from an adjacent Section 106 property will be acquired, but the significance of the Section 106 resource is such that the SHPO concurs in FHWA’s determination of no adverse effect.  However, the use of the property will permanently incorporate property of the historic site into a transportation facility and Section 4(f) will apply.  This project situation may be evaluated using the Nationwide Section 4(f) Evaluation and Approval for Federally-Aided Highway Projects with Minor Involvements with Historic Sites (www.environment.fhwa.dot.gov/guidebook/vol2/doc15e.pdf), as long as the class of action is not an EIS. 

## Use

- Fee simple
- Permanent easement
- Temporary occupancy (in some cases)
- Constructive use

- Policy Paper Q. 1A, 1B, 1C

**Notes:**
For temporary occupancy the cases in which it might be a use are those where the recreational activity is severely disrupted.  An example might be a baseball park – does the temporary occupancy occur during or outside of the baseball season?

Constructive Use is the most complicated – this is where there is no impact on the parcel’s footprint – no land taken, but there is a proximity impact of such magnitude that the use of the park is prevented.

## Fee Simple Use

- Acquisition of property for transportation purposes
- Conversion to highway or transit ROW (or other DOT need)

**Notes:**
Buying the land outright.

1.  Use of Resources

Question A:  What constitutes a "use" of land from a publicly owned public park, public recreation area, wildlife refuge and waterfowl refuge or historic site?
Answer A:  Section 4(f) “use” is defined and addressed in the FHWA/FTA Regulations at 23 C.F.R. 771.135(p).  A "use" occurs when:
Land from a 4(f) site is permanently incorporated into a transportation facility, 
There is a temporary occupancy of land that is adverse in terms of the Section 4(f) statute's preservationist purposes (23 C.F.R. 771.135(p)(7)), or 
When there is a constructive use of land (23 C.F.R. 771.135(p)(2)). 
Land will be considered permanently incorporated into a transportation project when it has been purchased as right-of-way or sufficient property interests have been otherwise acquired for the purpose of project implementation.  For example, a “permanent easement” which is required for the purpose of project construction or that grants a future right of access onto 4(f) property, such as for the purpose of routine maintenance by the transportation agency, would be considered a permanent incorporation of land into a transportation facility. 
Project activities involving the restoration, rehabilitation or maintenance of highways, bridges or other eligible transportation facilities (23 C.F.R. 771.135(f)) that are on or eligible for the National Register of Historic Places will not "use" land from these 4(f) resources when the project does not adversely effect (under Section 106 of the National Historic Preservation Act) the historic qualities of the facility for which it was determined eligible for the National Register of Historic Places, and the State Historic Preservation Officer has been consulted and does not object to the finding of no historic properties adversely affected (see also Question 4). 

## Permanent Easement

- Policy Paper – Q. 1A

**Notes:**
This has the same effect as fee simple – permanent conversion of the land or permanent intrusion of the road.

1.  Use of Resources

Question A:  What constitutes a "use" of land from a publicly owned public park, public recreation area, wildlife refuge and waterfowl refuge or historic site?
Answer A:  Section 4(f) “use” is defined and addressed in the FHWA/FTA Regulations at 23 C.F.R. 771.135(p).  A "use" occurs when:
Land from a 4(f) site is permanently incorporated into a transportation facility, 
There is a temporary occupancy of land that is adverse in terms of the Section 4(f) statute's preservationist purposes (23 C.F.R. 771.135(p)(7)), or 
When there is a constructive use of land (23 C.F.R. 771.135(p)(2)). 
Land will be considered permanently incorporated into a transportation project when it has been purchased as right-of-way or sufficient property interests have been otherwise acquired for the purpose of project implementation.  For example, a “permanent easement” which is required for the purpose of project construction or that grants a future right of access onto 4(f) property, such as for the purpose of routine maintenance by the transportation agency, would be considered a permanent incorporation of land into a transportation facility. 
Project activities involving the restoration, rehabilitation or maintenance of highways, bridges or other eligible transportation facilities (23 C.F.R. 771.135(f)) that are on or eligible for the National Register of Historic Places will not "use" land from these 4(f) resources when the project does not adversely effect (under Section 106 of the National Historic Preservation Act) the historic qualities of the facility for which it was determined eligible for the National Register of Historic Places, and the State Historic Preservation Officer has been consulted and does not object to the finding of no historic properties adversely affected (see also Question 4). 

## Temporary Easement

- 23 CFR 771.135(p)(1) & (p)(7)
- Policy Paper Qs. - 1A & 1C

**Notes:**
 The temporary easement might be a staging area, or it might be closure of parking access.

Question C:  When does temporary occupancy of a 4(f) resource result in a 4(f) use?
Answer C:  In general, Section 4(f) does not apply to the temporary occupancy, including those resulting from a right-of-entry, construction, other temporary easements or short-term arrangements, of a significant publicly owned public park, recreation area or wildlife and waterfowl refuge, or any significant historic site where temporary occupancy of the land is so minimal that it does not constitute a use within the meaning of Section 4(f).  
A temporary occupancy will not constitute a use of 4(f) resource when all of the conditions set forth in 23 C.F.R. 771.135(p)(7) are met:
Duration (of the occupancy) must be temporary, i.e., less than the time needed for construction of the project, and there should be no change in ownership of the land;
Scope of the work must be minor, i.e., both the nature and the magnitude of the changes to the 4(f) resource are minimal;
There are no anticipated permanent adverse physical impacts, nor will there be interference with the activities or purpose of the resource, on either a temporary or permanent basis;
The land being used must be fully restored, i.e., the resource must be returned to a condition which is at least as good as that which existed prior to the project; and
There must be documented agreement of the appropriate Federal, State, or local officials having jurisdiction over the resource regarding the above conditions.
In the situation where a project does not meet all of the above criteria, the temporary occupancy will be considered a use of the 4(f) resource and the appropriate Section 4(f) analysis will be required. 

## Temporary Easement

- Does Not constitute use when:
- Occupancy is of short duration
-      ... less than project construction
- No change in ownership
- No long-term or indefinite interests created
- No temporary or permanent adverse change
- Involves only a minor amount of land

- 23 CFR 771.135(p)(7)

**Notes:**
Does not mean that there is not a potential impact that needs to be addressed during the NEPA process, including mitigation.

## Constructive Use 

- No actual incorporation of land
- Proximity impacts of the project
- Use defined by **substantial impairment**
- ... Activities, features, or attributes that qualify the resource for section 4(f) protection are **substantially diminished**

- 23 CFR 771.135(p)(2), Policy Paper Q. 1B

**Notes:**
Proximity impacts might include noise, vibration, air quality.

To designate something as a constructive use requires approval by FHWA HQ.  Rare cases, must substantially impair the use of the property.  An example is noise impacts on an amphitheater.

Question B:  How is "constructive use" defined and determined?
Answer B:  23 C.F.R. 771.135(p) defines what a constructive use is.  FHWA has identified certain project situations where a constructive use will occur and when a constructive use will not occur (see 23 C.F.R. 771.135(p)(4) and (5)).  Constructive use is only possible in the absence of permanent incorporation or temporary occupancy of the type that constitutes a use of 4(f) land by a transportation project.  Constructive use only occurs in those situations where, including mitigation, the proximity impacts of a project on the 4(f) property are so severe that the activities, features or attributes that qualify the property or resource for protection under Section 4(f) are substantially impaired.  Substantial impairment occurs when the activities, features or attributes of the 4(f) property are substantially diminished (23 C.F.R. 771.135(p)(2)), which means that the value of the resource in terms of its Section 4(f) significance will be meaningfully reduced or lost.  The degree of impact and impairment should be determined in consultation with the officials having jurisdiction over the resource.  
An example of such an impact might be the traffic noise resulting from a new or improved highway facility proposed near an amphitheater that substantially interferes with the use and enjoyment of the noise-sensitive resource, and the conditions set forth in 23 C.F.R. 771.135(p) are satisfied.  For additional information on noise, please refer to FHWA noise regulations at 23 C.F.R. 772.
Constructive use determinations will be rare[1].  The impacts outlined in 23 C.F.R. 771.135(p)(4), involving projects adjacent to or in the proximity of 4(f) resources should be carefully examined.  If it is determined that the proximity impacts do not cause a substantial impairment, FHWA can reasonably conclude that there is no constructive use.  FHWA has determined that certain impacts constitute a constructive use and that others do not (see 23 C.F.R. 771.135(p)(4) and (5)).  Environmental documents should of course contain the analysis of any potential proximity effects and consider whether or not there is substantial impairment to a 4(f) resource.  Except for responding to review comments in environmental documents, which specifically address constructive use, the term "constructive use" need not be used.  Where a constructive use determination is likely, the FHWA Division Office must consult with the Headquarters Office of Project Development and Environmental Review during development of the preliminary-draft Section 4(f) evaluation.
[1] The FHWA’s constructive use policy was formalized in regulation on April 1, 1991, with the addition of paragraph (p) to 23 C.F.R. 771.135.  The November 12, 1985, memorandum from Mr. Ali F. Sevin, Director of the Office of Environmental Policy to the Regional Federal Highway Administrators is no longer applicable.

## Constructive Use

- 23 CFR 771.135(p)(2)

**Notes:**

The project (widening or new construction) avoids the taking (“actual use”) of any Section 4(f) property ... but construction is adjacent (in proximity) to the existing resource.

What are the possible or potential proximity impacts related to or associated with this project ? ...
... noise (maybe), visual impacts (not likely), access restrictions (possible), vibration (maybe), and ecological intrusion (no) ?

Noise, (for example) -

- is it possible that the noise effect would substantially impair the use of a baseball field ?
- what about the effect on the amphitheater ?

A proximity impact is a constructive use when ....
...  because of a projects location, impacts will "substantially impair" the purpose for which Section 4(f) significance was determined.

## Constructive Use

- Potential constructive use impacts
-  Noise impacts
-  Visual impacts
-  Access restrictions
-  Vibration
-  Ecological intrusion

- 23 CFR 771.135(p)(4)

## No Constructive Use

- No historic properties affected / no adverse effect
- Noise abatement criteria not approached ...
- Timing of determination
- Concurrent development in area
- Combined impacts not substantially impair
- Impacts mitigated
- Minor changes in accessibility
- Vibration impacts are minor or mitigated

- 23 CFR 771.135(p)(4)

## Section 4(f) Examples

- Common situations and resources ...
- ... FHWA’s Section 4(f) Policy Paper

## Historic Bridges and Highways

- Rehabilitation, repair, or improvement
- No adverse effect - no 4(f) use
- Adverse effect - 4(f) use
- Bridge donations (new alignment)
- Historic integrity maintained - no 4(f) use
- Historic integrity not maintained - 4(f) use
- Demolish bridge - 4(f) use

- 23 USC 144(o), 23 CFR 771.135(f) Policy Paper – Qs. 4A, 4B, 4C, 4D

**Notes:**
4.  Historic Bridges, Highways and Other Transportation Facilities
Question A:  How does Section 4(f) apply to historic bridges and highways?
Answer A:  The Section 4(f) statute places restrictions on the use of land from historic sites for highway improvements but makes no mention of historic bridges or highways, which are already serving as transportation facilities.  The Congress clearly did not intend to restrict the rehabilitation, repair or improvement of these facilities.  FHWA, therefore, determined that Section 4(f) would apply only when an historic bridge or highway is demolished, or if the historic quality for which the facility was determined to be eligible for the National Register is adversely affected by the proposed improvement. The determination of adverse effect under 36 CFR 800.5 is made by FHWA in consultation with the SHPO and/or THPO.  Where FHWA determines that the facility will not be adversely affected the SHPO/THPO must concur with the determination or FHWA must seek further input from the ACHP.
Question B:  Will Section 4(f) apply to the replacement of an historic bridge that is left in place?
Answer B:  Section 4(f) does not apply to the replacement of an historic bridge on new location when the historic bridge is left in its original location if its historic value will be maintained, and the proximity impacts of the new bridge do not result in a substantial impairment of the historic bridge.  To satisfy the first requirement, FHWA requires the establishment of a mechanism of continued maintenance to avoid the circumstance of harm to the bridge due to neglect.  
Question C:  How do the requirements of Section 4(f) apply to donations pursuant to 23 U.S.C. 144(o) to a State, locality, or responsible private entity?
Answer C:  23 U.S.C. 144(o) is a separate requirement related to historic bridges when demolition is proposed.  23 U.S.C. 144(o)(4) requires the State that proposes to demolish an historic bridge for a replacement project using Federal funds (i.e. Section 144 bridge funds) to first make the bridge available for donation to a State, locality or a responsible private entity.  This process is commonly known as “marketing the historic bridge”.  The State, locality or responsible entity that accepts the donation must enter into an agreement to maintain the bridge and the features that give it its historic significance, and assume all future legal and financial responsibility for the bridge.  Therefore, Section 4(f) will not apply to the bridges that are donated according to requirements of 23 U.S.C. 144(o) as the bridge is not used in the transportation project.  The exception found in 23 C.F.R. 771.135(f) also applies, given the maintenance agreement that is required under 23 U.S.C. 144(o).   
If the bridge marketing effort is unsuccessful and the bridge is to be demolished, the evaluation must include the finding that there is no feasible and prudent alternative to the use and the project includes all possible planning to minimize harm.  
Note: Programmatic Section 4(f) Evaluation and Approval for FHWA Projects that Necessitate the Use of Historic Bridges (www.environment.fhwa.dot.gov/guidebook/vol2/doc15j.pdf) may be used for projects that require the use of an historic bridge.   
Question D:  Does Section 4(f) apply to other historic transportation facilities? 
Answer D:  Yes, but in the case of restoration, rehabilitation or maintenance of historic transportation facilities (e.g. railroad stations and terminal buildings which are on or eligible for the National Register) Section 4(f) only applies when the facility will be adversely affected (36 C.F.R. 800.5) by the proposed improvement.

## Historic Districts

- Policy Paper – Q.3C

**Notes:**
Historic districts likely consist of non-historic properties, as well as historic properties. (a swiss cheese).

Section 4(f) does not apply to the use of a property within a district that is not -
- individually historic, 
- an integral part of the historic district in which it is located, 
- and does not contribute to the factors which make the district historic.

Appropriate steps (including consultation with the SHPO) should be taken to establish and document -
- that the property is not historic, 
- that it has no value in the context of the historic district, 
- and its occupancy would not adversely affect the integrity of the historic district.

The property and the district must be carefully evaluated to determine whether or not such a property could be occupied without adversely affecting the integrity of the historic district.

If the occupancy of the property adversely affects the integrity of the district, then Section 4(f) would apply. 

## Public Multiple-Use Lands 

- National Forests
- State Forests
- BLM lands
- Public schools
- Wildlife, game and conservation areas

- Policy Paper – Q. 6

## Public Multiple-Use Lands

**Notes:**
6.  Public Multiple-Use Land Holdings
Question:  Are multiple-use public land holdings (e.g., National Forests, State Forests, Bureau of Land Management lands, etc.) subject to the requirements of Section 4(f)?
Answer:  Section 4(f) applies to historic properties (those on or eligible for the National Register of Historic Places) located on these multiple-use land holdings and only to those portions of the lands which are designated by statute or identified in the management plans of the administering agency as being primarily for park, recreation, or wildlife and waterfowl refuge purposes, and determined to be significant for such purposes.  For example, within a large multiple-use resource, like a National Forest, there can be areas that qualify as 4(f) property (e.g. a campground, picnic area, etc.) while other areas of the property function primarily for purposes other than park, recreation or refuges.  Coordination with the official having jurisdiction and examination of the management plan for the area are necessary to determine Section 4(f) applicability. 
For public land holdings, which do not have management plans or existing management plans are out-of-date, Section 4(f) applies to those areas that are publicly owned and function primarily for 4(f) purposes.  Section 4(f) does not apply to areas of multiple-use lands which function primarily for purposes other than park, recreation or refuges such as for those areas that are used for timber sales or mineral extraction in National Forests. 

## Public Multiple-Use Lands

- 4(f) applies to historic properties
- Designated / included in management plan
- 4(f) applies to park, recreation, or refuge activities
- 4(f) does not apply to areas of non-4(f) function
- No management plan
- 4(f) applies where primary function is for park, recreation, or refuge activity
- No 4(f) where primary function is for other activities

- 23 CFR 771.135(d), Policy Paper - Q. 6

**Notes:**
6.  Public Multiple-Use Land Holdings
Question:  Are multiple-use public land holdings (e.g., National Forests, State Forests, Bureau of Land Management lands, etc.) subject to the requirements of Section 4(f)?
Answer:  Section 4(f) applies to historic properties (those on or eligible for the National Register of Historic Places) located on these multiple-use land holdings and only to those portions of the lands which are designated by statute or identified in the management plans of the administering agency as being primarily for park, recreation, or wildlife and waterfowl refuge purposes, and determined to be significant for such purposes.  For example, within a large multiple-use resource, like a National Forest, there can be areas that qualify as 4(f) property (e.g. a campground, picnic area, etc.) while other areas of the property function primarily for purposes other than park, recreation or refuges.  Coordination with the official having jurisdiction and examination of the management plan for the area are necessary to determine Section 4(f) applicability. 
For public land holdings, which do not have management plans or existing management plans are out-of-date, Section 4(f) applies to those areas that are publicly owned and function primarily for 4(f) purposes.  Section 4(f) does not apply to areas of multiple-use lands which function primarily for purposes other than park, recreation or refuges such as for those areas that are used for timber sales or mineral extraction in National Forests. 

## Bodies Of Water

- How does a highway project use a river or lake? What about ownership? Purpose?
- May require application of multiple use / primary function concept
- Rivers are generally not 4(f) except for:
- Publicly owned recreational trails
- Designated National Wild and Scenic Rivers

- Policy Paper - Q. 13

**Notes:**
13.  Bodies of Water
Question:  How does the Section 4(f) apply to publicly owned lakes and rivers?
Answer:  Lakes are sometimes subject to multiple, even conflicting, activities and do not readily fit into one category or another.  When lakes function for park, recreation, or refuge purposes, Section 4(f) would only apply to those portions of water which function primarily for those purposes.  Section 4(f) does not apply to areas which function primarily for other purposes.  In general, rivers are not subject to the requirements of Section 4(f).  Rivers in the National Wild and Scenic Rivers System are subject to the requirements of Section 4(f) in accordance with Questions 8 A and 8 B.  Those portions of publicly owned rivers, which are designated as recreational trails are subject to the requirements of Section 4(f).  Of course Section 4(f) would also apply to lakes and rivers or portions thereof which are contained within the boundaries of parks, recreational areas, refuges, and historic sites to which Section 4(f) otherwise applies.

## Wild And Scenic Rivers

- Rivers under study - 4(f) does not apply
- Designated Rivers
- Publicly owned - 4(f) applies
- Publicly owned land
- 4(f) applies to recreation areas
- Designated in plan
- Actually in place (undesignated or no management plan)

- Policy Paper – Qs. 8A & 8B

**Notes:**
8.  Wild and Scenic Rivers
Question A:  Are Wild and Scenic Rivers (WSR) subject to Section 4(f)?
Answer A:  A Wild and Scenic River (WSR) is defined as “a river and the adjacent area within the boundaries of a component of the National Wild and Scenic Rivers System (National System)”, pursuant to Section 3(a) and 2(a)(ii) of the National Wild and Scenic Rivers Act (WSRA) (36 C.F.R. 297.3).  Significant publicly owned public parks, recreation areas, or significant wildlife and waterfowl refuges and historic sites (on or eligible of the National Register of Historic Places) in a WSR corridor are subject to Section 4(f).  Privately owned lands in a WSR corridor are not subject to Section 4(f), except for historic and archeological sites (see Question 5).  Publicly owned lands not open to the general public (e.g., military bases and any other areas with similar restricted access) and whose primary purpose is other than 4(f) are not subject to Section 4(f).
Lands in WSR corridors managed for multiple purposes may or may not be subject to Section 4(f) requirements, depending on the manner in which they are administered by the managing agency (see also Question 6).  WSRs are managed by four different Federal agencies, including the U.S. Forest Service, the National Park Service, the Fish and Wildlife Service and the Bureau of Land Management.  Close examination of the management plan (as required by the WSRA) prior to any use of these lands for transportation purposes is necessary.  Section 4(f) would apply to those portions of the land designated in a management plan for recreation or other 4(f) purposes as discussed above.  Where the management plan does not identify specific functions, or where there is no plan, FHWA should consult further with the river-administering agency prior to making the Section 4(f) determination.
The WSRA sets forth those rivers in the United States, which are designated as part of the Wild and Scenic River System.  Within this system there are wild, scenic and recreational designations.  In determining whether Section 4(f) is applicable to these rivers, one must look at how the river is designated, how the river is being used and the management plan over that reach of the river.  If the river is designated a recreational river under the Act or is a recreation resource under a management plan, then it would be a 4(f) resource.  A single river can be classified as having separate wild, scenic and recreation areas along the entire river.  The designation of a river under the WSRA does not in itself invoke Section 4(f) in the absence of 4(f) attributes and qualities.  For example, if a river is included in the System and designated as “wild” but is not being used as or designated under a management plan as a park, recreation area, wildlife and waterfowl refuge and is not an historic site, then Section 4(f) would not apply.
Aspects of the FHWA program determined to be a water resources project are subject to Section 7 of the WSRA (16 U.S.C. 1271 et seq.)  This requires the river-administering agency to make a determination as to whether there are “direct and adverse effects” to the values of a WSR or congressionally authorized study river.  Although Section 7 of the WSRA generally results in more stringent control, Section 4(f) may also apply to bridges that cross a designated WSR.  
Question B:  Are potential rivers and adjoining lands under study (pursuant to Section 5(a) of the Wild and Scenic Rivers Act) 4(f) resources?
Answer B:  No, unless they are significant publicly owned public parks, recreation areas, and refuges, or significant historic sites in a potential river corridor.  However, such rivers are protected under Section 12(a)[1] of the WSRA, which directs all Federal departments and agencies to protect river values in addition to meeting their agency mission.  Section 12(a) further recognizes that particular attention should be given to “timber harvesting, road construction, and similar activities, which might be contrary to the purposes of this Act.”
[1] “The Secretary of the Interior, the Secretary of Agriculture, and the head of any other Federal department or agency having jurisdiction over any lands which include, border upon, or are adjacent to, any river included within the National Wild and Scenic Rivers System or under consideration for such inclusion, in accordance with section 2(a)(ii), 3(a), or 5(a), shall take such action respecting management policies, regulations, contracts, plans, affecting such lands, following the date of enactment of this sentence, as may be necessary to protect such rivers in accordance with the purposes of this Act.”

## Public School Playgrounds

- 4(f) does not apply where:
- Primary function for students PE and recess
- Serves only school activities
- No or little walk-on activity
- 4(f) applies where:
- Significant organized recreational activities
- Significant substantial walk-on activities

- Policy Paper - Q. 10

**Notes:**
10.  School Playgrounds
Question:  Are publicly owned school playgrounds subject to the requirements of Section 4(f)?
Answer:  While the primary purpose of public school playgrounds is for structured physical education classes and recreation for students, these properties may also serve significant public recreational purposes and as such, may be subject to Section 4(f) requirements.  When a playground serves only school activities and functions, the playground is not considered subject to Section 4(f).  However, when a public school playground is open to the public and serves either organized or substantial “walk-on” recreational purposes, it is subject to the requirements of Section 4(f) if the playground is determined to be significant for recreational purposes (see also Question 2 B).  In determining the significance of the playground facilities, there may be more than one official having jurisdiction over the facility.  A school official is considered to be the official having jurisdiction of the land during school activities.  However, the school board may have authorized the city park and recreation department or a public organization to control the facilities after school hours.  The actual function of the playground is the determining factor under these circumstances.  Therefore, documentation should be obtained from the officials having jurisdiction over the facility stating whether or not the playground is of local significance for recreational purposes.

## Golf Courses

- Applicability of Section 4(f):
- Publicly owned
- Open to the general public
- Determined to be a significant recreational area.

- Policy Paper - Q. 11

**Notes:**
11.  Golf Courses
Question A:  Are public golf courses subject to Section 4(f), even when fees and reservations are required?
Answer A:  The applicability of Section 4(f) to a golf course depends on the ownership of the golf course. There are generally three types of golf courses:
Publicly owned and open to the general public, 
Privately owned and open to the general public and 
Privately owned and for the use of members only.  
Section 4(f) would apply only to those golf courses that are publicly owned, open to public and determined to be significant recreational areas (see also Question 2 B).  The first type of golf course mentioned above includes those that are owned, operated and managed by a city, county or state for the primary purpose of public recreation.  These golf courses meet the basic applicability requirements, as long as they are determined to be significant by the city, county or state official with jurisdiction and FHWA agrees with this determination. 
Section 4(f) would not apply to the two types of privately owned and operated golf courses mentioned above, even if they are open to the general public.
The fact that greens-fees or reservations (tee times) are required by the facility does not alter the Section 4(f) applicability to the resource, as long as the standards of public ownership, public access and significance are met.  See Question 12 for more information on entrance or user fees. 
Question B:  How are “military” golf courses treated under Section 4(f)?
Answer B:  Military golf courses are a special type of recreational area.  They are publicly owned (by the Federal Government) but are not typically open to the general public.  Because the recreational use of these facilities is generally limited to military personnel and their families they are not considered to be public recreational areas and, therefore, Section 4(f) does not apply to them (see Question 2 C). 

## Trails & Bikeways

- Recreational trails
- Publicly owned - 4(f)
- Privately owned - no 4(f)
- Bikeways - primary function
- Transportation - no 4(f)
- Recreation - 4(f)
- Historic trails identified in PL. 95-625 are exempt from 4(f)
- If a trail is simply described as being in the ROW, then relocation of it within the ROW is not a 4(f) use.

- Policy Paper - Q. 14 & 15

**Notes:**
14.  Trails
Question A:  The National Trails System Act permits the designation of scenic, historic and recreational trails.  Are these trails or other designated scenic or recreational trails on publicly owned land subject to the requirements of Section 4(f)? 
Answer A:  Public Law 95-625 provides that, no land or site located along a designated national historic trail or along the Continental Divide National Scenic Trail shall be subject to the provisions of Section 4(f) of the Department of Transportation Act (49 U.S.C. 1653(f)) unless such land or site is deemed to be of historical significance under appropriate historical site criteria, such as those for the National Register of Historic Places.  Only lands or sites adjacent to historic trails that are on or eligible for the National Register of Historic Places are subject to Section 4(f).  Otherwise (pursuant to Public Law 95-625), national historic trails are exempt from Section 4(f).
Question B:  Are trails on privately owned land, including land under public easement and designated as scenic or recreational trails subject to the requirements of Section 4(f)?
Answer B:  Section 4(f) does not apply to trails on privately owned land. Section 4(f) could apply where a public easement that permits public access for recreational purposes exists.  In any case, it is FHWA’s policy that every reasonable effort should be made to maintain the continuity of existing and designated trails. 
Question C:  Are trails on highway rights-of-way, which are designated as scenic or recreational trails subject to the requirements of Section 4(f)?
Answer C:  If the trail is simply described as occupying the rights-of-way of the highway and is not limited to any specific location within the right-of-way, a use of land would not occur provided that adjustments or changes in the alignment of the highway or the trail would not substantially impair the continuity of the trail.  In this regard, it would be helpful if all future designations including those made under the National Trails System Act describe the location of the trail only as generally in the right-of-way. 
It should be noted that in Title 23, Section 109(m) precludes the approval of any project, which will result in the severance, or destruction of an existing major route for non-motorized transportation traffic unless such project provides a reasonable alternative route or such a route exists. 
Question D:  Does Section 4(f) apply to trails funded under the Recreational Trails Program (RTP)?  
Answer D:  No.  The Recreational Trails Program (RTP)[1] is exempt from the requirements of 23 U.S.C. 138 and 49 U.S.C. 303.  This allows the USDOT/FHWA to approve RTP projects which are located on land within publicly owned parks or recreation areas without requiring a waiver or other Section 4(f) documentation (23 U.S.C. 206 (h)(2)).  The exemption is limited to Section 4(f) and does not apply to other environmental requirements, such as the National Environmental Policy Act (NEPA) or the National Historic Preservation Act (NHPA).  More information on the Recreational Trails Program is available at www.fhwa.dot.gov/environment/rectrails/index.htm.
15.  Bikeways
Question:  Do the requirements of Section 4(f) apply to bikeways?
Answer:  If the publicly owned bikeway is primarily used for transportation and is an integral part of the local transportation system, the requirements of Section 4(f) would not apply, since it is not a recreational area.  Section 4(f) would apply to publicly owned bikeways (or portions thereof) designated or functioning primarily for recreation, unless the official having jurisdiction determines it is not significant for such purpose.  During early consultation with the official with jurisdiction it should be determined whether or not a management plan exists that addresses the primary purpose of the bikeway in question.
However, as with recreational trails, if the bikeway is simply described as occupying the highway rights-of-way and is not limited to any specific location within that right-of-way, a use of land would not occur and Section 4(f) would not apply, provided adjustments or changes in the alignment of the highway or bikeway would not substantially impair the continuity of the bikeway.  Just as with trails, Title 23 Section 109(m) precludes the approval of any project, which will result in the severance or destruction of an existing major route for non-motorized transportation traffic, unless such project provides a reasonable alternative route or such a route exists.
[1]In 1998, the Transportation Equity Act for the 21st Century (TEA-21) replaced the National Recreational Trails Funding Program created by the Intermodal Surface Transportation Efficiency Act (ISTEA) with the Recreational /Trails Program (RTP). 

## Late Designation

- If land is acquired for transportation purpose prior to 4(f) designation or prior to change in significance
- and
- If adequate efforts were made to identify 4(f) property (requirements and standards that existed at time of study and analysis)

- 23 CFR 771.135(h)  Policy Paper - Q. 7

**Notes:**
7.  Late Designation of 4(f) Resources
Question:  Are properties in the highway right-of-way that are designated (as park and recreation lands, wildlife and waterfowl refuges, or historic sites) late in the development of a proposed project subject to the requirements of Section 4(f)?
Answer:  Except for archaeological resources (including those discovered during construction), a project may proceed without consideration under Section 4(f) if that land was purchased for transportation purposes prior to the designation or prior to a change in the determination of significance and if an adequate effort was made to identify properties protected by Section 4(f) prior to the acquisition.  The adequacy of effort made to identify properties protected by Section 4(f) should consider the requirements and standards of adequacy that existed at the time of the search.  Archaeological resources may be subject to the requirements of Section 4(f) in accordance with Question 5.

## “Planned” 4(f) Facilities

- Formally designated
- and
- Determined to be significant ...
- 	... for park, recreation, or refuge purposes

- Policy Paper - Q. 17

**Notes:**
17.  Planned 4(f) Resources 
Question:  Do the requirements of Section 4(f) apply to publicly owned properties "planned" for park, recreation area, wildlife refuge, or waterfowl refuge purposes even though they are not presently functioning as such?
Answer:  Section 4(f) applies when the land is one of the enumerated types of publicly owned lands and the public agency that owns the property has formally designated and determined it to be significant for park, recreation area, wildlife and waterfowl refuge purposes.  Evidence of formal designation would be the inclusion of the publicly owned land, and its function as a 4(f) resource, into a city or county Master Plan.  A mere expression of interest or desire is not sufficient.  When privately held properties of these types are formally designated into a Master Plan, Section 4(f) is not applicable.  The key is whether the planned facility is presently publicly owned, formally designated and significant.  When this is the case, Section 4(f) would apply. 

## Joint Development

- Policy Paper – Q. 16

**Notes:**
If the park is built with knowledge of the highway project to come and they are designed together they can be determined to be jointly developed and section 4(f) won’t apply.

## Joint Development

## Occupancy of ROW

- Where undeveloped, vacant highway ROW, or preserved transportation corridor is used for other than transportation purposes
- Section 4(f) does not apply to either authorized or unauthorized occupancy of highway rights-of-way

-  Policy Paper – Q. 18

**Notes:**
 18.  Temporary Recreational Occupancy or Uses of Highway Rights-of-way 
Question:  Does Section 4(f) apply to temporary recreational uses of land owned by a State Department of Transportation or other Applicant and designated for transportation purposes?
Answer:  In situations where land which is owned by a State DOT or other Applicant and designated for future transportation purposes (including highway rights-of-way) is temporarily occupied or being used for either authorized or unauthorized recreational purposes such as for a playground or a trail (bike, snowmobile, hiking, etc.) on property purchased as right-of-way, Section 4(f) does not apply.   For authorized temporary occupancy of highway rights-of-way for park or recreation, it is advisable to make clear in a limited occupancy permit, with a reversionary clause that no long-term right is created and the park or recreational activity is a temporary one pending completion of the highway or transportation project. 
Note:  In one recent proposed transportation project, lands designated for transportation purposes and utilized for recreational uses pursuant to a revocable agreement granting temporary use, were found by a court to be 4(f) resources, but this case had unusual facts.  Nevertheless, it is important to recognize this decision, even though it is contrary to FHWA policy (see Stewart Park and Reserve Coalition v. Slater, 352 F.3d 545 (2nd Cir. 2003), Appendix A, Question 18). 

## Wildlife Areas

- National wildlife refuges - 4(f) applies
- Wildlife management area -
- 4(f) applies if primary function is for refuge purposes
- Otherwise, apply multiple use concept

- Policy Paper – Q. 20

**Notes:**
20.  Wildlife and Waterfowl Refuges
Question A:  What is a wildlife or waterfowl refuge for purposes of Section 4(f)? 
Answer A:  The terms “wildlife refuge” and “waterfowl refuge” are not defined in the Section 4(f) law or in FHWA's regulations.  However, in 1966, the same year Section 4(f) was passed; Congress also passed the National Wildlife Refuge System Act (NWRSA).  The NWRSA defines these terms broadly focusing on the preservationist intent of the refuges.  The FHWA has considered this in our implementation of Section 4(f) for refuges.  For purposes of Section 4(f), a wildlife and waterfowl refuge is publicly owned land (including waters) where the major purpose of such land is the conservation, restoration, or management of endangered species, their habitat, and other wildlife and waterfowl resources.  In determining the major purpose of the land, consideration must be given to the following:  (1) the authority under which the land was acquired; (2) lands with special national or international designations; (3) the management plan for the land; and/or (4) whether the land has been officially designated by a Federal, State, or local agency having jurisdiction over the land, as an area for which its major purpose and function is the conservation restoration, or management of endangered species, their habitat or wildlife and waterfowl resources.  Recreational activities, including hunting and fishing, are consistent with the broader species preservation.  
Examples of properties that may function as wildlife or waterfowl refuges include: State or Federal wildlife management areas, a wildlife reserve, preserve or sanctuary, and waterfowl production areas, including wetlands and uplands that are set aside (in a form of public ownership) for refuge purposes.  The FHWA must consider the ownership, significance and major purpose of these properties in determining if Section 4(f) should apply.  In making these determinations FHWA should review the existing management plans and consult with the Federal, State or local officials having jurisdiction over the property.  In some cases, these types of properties will actually be multiple-use public land holdings of the type discussed in Question 6, and should be treated accordingly. 
Question B:  Are “conservation easements” acquired by the United States on private lands considered Section 4(f) wildlife and waterfowl refuges?  
Answer B:  Easements (a form of property ownership, see Question 2 D) acquired by the United States are subject to Section 4(f) as a wildlife and waterfowl refuges when they are part of the National Wildlife Refuge System.  Other lands may be subject to Section 4(f) when they meet the definition and criteria specified in Answer A, above.  In all cases, FHWA must consider the ownership, significance, and major purpose of these types of properties in determining if Section 4(f) should apply.

## Air Rights - Bridging

**Historic Canal**

**Recreation Trail**

**Towpath**

- Policy Paper – Q. 21

**Notes:**
 21.  Air Rights
Question:  Do the requirements of Section 4(f) apply to bridging over a publicly owned public park, recreation area, wildlife or waterfowl refuge, or historic site?
Answer:  Section 4(f) will apply if piers or other appurtenances are physically located in the park, recreation area, wildlife and waterfowl refuge, or significant historic property.  Where the bridge will span the 4(f) resource entirely, the proximity impacts of the bridge on the 4(f) resource should evaluated to determine if the placement of the bridge will result in a constructive use (see Question 1 B).

## Trans. Enhancement Projects

- Pedestrian and bicycle facilities
- Pedestrian and bicycle safety and education activities
- Acquisition of scenic or historic easements and sites
- Scenic or historic highway programs, including tourist and welcome centers
- Landscaping and scenic beautification
- Historic preservation

- Policy Paper Q. 24 A

**Notes:**
24.  Transportation Enhancement Projects
Question A:  How is Section 4(f) applied to transportation enhancement activity projects? 
Answer A:  A transportation enhancement activity (TEA) is one of twelve specific types of activities set forth by statute at 23 U.S.C. 101(a)(35).  TEAs often involve the enhancement of, or improvement to, land that qualifies as a Section 4(f) protected resource.  For a 4(f) resource to be used by a TEA, two things must occur, (1) the TEA must involve land of an existing 4(f) resource; and (2) there must be a use of that 4(f) resource as defined by 23 C.F.R. 771.135(p).  Therefore, if a TEA permanently incorporates 4(f) land into a transportation facility then there is a use and Section 4(f) will apply.   
The following TEAs have the greatest potential for Section 4(f) use:  
Facilities for pedestrians and bicycles
Acquisition of scenic easements and scenic or historic sites 
Scenic or historic highway programs including tourist and welcome centers 
Historic preservation 
Rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals)
Preservation of abandoned railway corridors (including the conversion and use thereof for pedestrian or bicycle trails)
Conversely, the TEAs below are less likely to be subject to Section 4(f):
Safety and educational activities for pedestrians and bicyclists
Landscaping or other scenic beautification
Control and removal of outdoor advertising 
Archeological planning and research
Environmental mitigation of highway runoff pollution, reduce vehicle-caused wildlife mortality, maintain habitat connectivity
Establishment of transportation museums
In both categories above, the question of Section 4(f) use must be evaluated on a case-by-case basis.

To illustrate how Section 4(f) is applicable to a TEA, consider the following two scenarios involving a significant public park: 
Scenario 1:  A TEA project is proposed for the construction of a new pedestrian or bike facility within a public park.  The purpose of the project is primarily to promote a mode of travel and requires a transfer of land from the officials with jurisdiction over the 4(f) resource to the State DOT or local transportation authority.  Since this project would involve the “permanent incorporation of 4(f) land into a transportation facility” there is a use of 4(f) land and a Section 4(f) evaluation should be prepared.  In this instance, The Programmatic Section 4(f) Evaluation for Independent Bikeway or Walkway Construction Projects (www.environment.fhwa.dot.gov/guidebook/vol2/doc15m.pdf) would likely apply, depending on the particular circumstances of the project. 
Scenario 2:  The purpose of a TEA project is to construct, rehabilitate, reconstruct or refurbish an already existing bike path or walkway within a public park.  This project relates to surface transportation but the improvement is primarily intended to enhance the park.  In this case there is no “permanent incorporation of 4(f) land into a transportation facility” and, therefore, no Section 4(f) use.  A Section 4(f) evaluation does not need to be prepared.
Other TEA projects can involve existing transportation facilities such as highways, bridges, and buildings which are expected to have a useful life that is finite and therefore, continually require maintenance or rehabilitation.  While 23 C.F.R. 771.135(f) may apply in certain instances, generally speaking, the rehabilitation of a highway, building or bridge relates to surface transportation but does not rise to the level of a Section 4(f) use (see also Question 4).  
Archaeological planning and research projects that involve the potential use of a significant archeological property are covered by the provisions of 23 C.F.R. 771.135(g) (see Question 5).  Other TEAs may be handled in accordance with this answer.  In complex situations the FHWA Division Office should contact the Headquarters Office of Project Development and Environmental Review or the Office of the Chief Counsel for assistance. 
Note:  This answer supersedes the August 22, 1994; Interim Guidance on Applying Section 4(f) On Transportation Enhancement Projects and National Recreational Trails.
Question B:  Is it possible for a TEA to create a 4(f) resource?
Answer B:  To be eligible for transportation enhancement funding, a proposed activity must relate to surface transportation and not be solely for recreation or other purpose.  Also, the development of parks, recreation areas, or wildlife and waterfowl refuges are not designated eligible TEAs.  Thus, in most cases, the TEA by itself would not create a 4(f) resource, where one did not previously exist.   
That being said, it is possible for transportation enhancement funds to enhance existing 4(f) resources, such as a bikeway or pedestrian facility that is constructed within a park.  The use of TEA funds in this case would not alter the future Section 4(f) status of the park and may add Section 4(f) values that would have to be considered in subsequent projects.  See Question 22 for additional discussion of the use of transportation funds within a park or other 4(f) resource for non-transportation purposes. 
For more information, see the FHWA Final Guidance on Transportation Enhancement Activities; December 17, 1999, and the TE Program Related Questions & Answers; August, 2002, found at the Transportation Enhancement Website (www.fhwa.dot.gov/environment/te/index.htm).

## Trans. Enhancement Projects

- Rehabilitation and operation of historic transportation buildings, structures or facilities
- Conversion of abandoned railway corridors to trails
- Control and removal of outdoor advertising
- Archeological planning and research
- Environmental mitigation of runoff pollution, and provision of wildlife connectivity
- Establishment of transportation museums

- Policy Paper Q. 24 A

**Notes:**
24.  Transportation Enhancement Projects
Question A:  How is Section 4(f) applied to transportation enhancement activity projects? 
Answer A:  A transportation enhancement activity (TEA) is one of twelve specific types of activities set forth by statute at 23 U.S.C. 101(a)(35).  TEAs often involve the enhancement of, or improvement to, land that qualifies as a Section 4(f) protected resource.  For a 4(f) resource to be used by a TEA, two things must occur, (1) the TEA must involve land of an existing 4(f) resource; and (2) there must be a use of that 4(f) resource as defined by 23 C.F.R. 771.135(p).  Therefore, if a TEA permanently incorporates 4(f) land into a transportation facility then there is a use and Section 4(f) will apply.   
The following TEAs have the greatest potential for Section 4(f) use:  
Facilities for pedestrians and bicycles
Acquisition of scenic easements and scenic or historic sites 
Scenic or historic highway programs including tourist and welcome centers 
Historic preservation 
Rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals)
Preservation of abandoned railway corridors (including the conversion and use thereof for pedestrian or bicycle trails)
Conversely, the TEAs below are less likely to be subject to Section 4(f):
Safety and educational activities for pedestrians and bicyclists
Landscaping or other scenic beautification
Control and removal of outdoor advertising 
Archeological planning and research
Environmental mitigation of highway runoff pollution, reduce vehicle-caused wildlife mortality, maintain habitat connectivity
Establishment of transportation museums
In both categories above, the question of Section 4(f) use must be evaluated on a case-by-case basis.

To illustrate how Section 4(f) is applicable to a TEA, consider the following two scenarios involving a significant public park: 
Scenario 1:  A TEA project is proposed for the construction of a new pedestrian or bike facility within a public park.  The purpose of the project is primarily to promote a mode of travel and requires a transfer of land from the officials with jurisdiction over the 4(f) resource to the State DOT or local transportation authority.  Since this project would involve the “permanent incorporation of 4(f) land into a transportation facility” there is a use of 4(f) land and a Section 4(f) evaluation should be prepared.  In this instance, The Programmatic Section 4(f) Evaluation for Independent Bikeway or Walkway Construction Projects (www.environment.fhwa.dot.gov/guidebook/vol2/doc15m.pdf) would likely apply, depending on the particular circumstances of the project. 
Scenario 2:  The purpose of a TEA project is to construct, rehabilitate, reconstruct or refurbish an already existing bike path or walkway within a public park.  This project relates to surface transportation but the improvement is primarily intended to enhance the park.  In this case there is no “permanent incorporation of 4(f) land into a transportation facility” and, therefore, no Section 4(f) use.  A Section 4(f) evaluation does not need to be prepared.
Other TEA projects can involve existing transportation facilities such as highways, bridges, and buildings which are expected to have a useful life that is finite and therefore, continually require maintenance or rehabilitation.  While 23 C.F.R. 771.135(f) may apply in certain instances, generally speaking, the rehabilitation of a highway, building or bridge relates to surface transportation but does not rise to the level of a Section 4(f) use (see also Question 4).  
Archaeological planning and research projects that involve the potential use of a significant archeological property are covered by the provisions of 23 C.F.R. 771.135(g) (see Question 5).  Other TEAs may be handled in accordance with this answer.  In complex situations the FHWA Division Office should contact the Headquarters Office of Project Development and Environmental Review or the Office of the Chief Counsel for assistance. 
Note:  This answer supersedes the August 22, 1994; Interim Guidance on Applying Section 4(f) On Transportation Enhancement Projects and National Recreational Trails.
Question B:  Is it possible for a TEA to create a 4(f) resource?
Answer B:  To be eligible for transportation enhancement funding, a proposed activity must relate to surface transportation and not be solely for recreation or other purpose.  Also, the development of parks, recreation areas, or wildlife and waterfowl refuges are not designated eligible TEAs.  Thus, in most cases, the TEA by itself would not create a 4(f) resource, where one did not previously exist.   
That being said, it is possible for transportation enhancement funds to enhance existing 4(f) resources, such as a bikeway or pedestrian facility that is constructed within a park.  The use of TEA funds in this case would not alter the future Section 4(f) status of the park and may add Section 4(f) values that would have to be considered in subsequent projects.  See Question 22 for additional discussion of the use of transportation funds within a park or other 4(f) resource for non-transportation purposes. 
For more information, see the FHWA Final Guidance on Transportation Enhancement Activities; December 17, 1999, and the TE Program Related Questions & Answers; August, 2002, found at the Transportation Enhancement Website (www.fhwa.dot.gov/environment/te/index.htm).

## Transportation Enhancement Activities and Section 4(f)

- Examples
- A new bike trail in a park – Section 4(f) applies since it involves ‘permanent incorporation of 4(f) land into a transportation facility’.
- Restoration/improvement of a recreational facility or historical site – Section 4(f) does not apply.

- Policy Paper Q. 24 A

**Notes:**
To illustrate how Section 4(f) is applicable to a TEA, consider the following two scenarios involving a significant public park: 
Scenario 1:  A TEA project is proposed for the construction of a new pedestrian or bike facility within a public park.  The purpose of the project is primarily to promote a mode of travel and requires a transfer of land from the officials with jurisdiction over the 4(f) resource to the State DOT or local transportation authority.  Since this project would involve the “permanent incorporation of 4(f) land into a transportation facility” there is a use of 4(f) land and a Section 4(f) evaluation should be prepared.  In this instance, The Programmatic Section 4(f) Evaluation for Independent Bikeway or Walkway Construction Projects (www.environment.fhwa.dot.gov/guidebook/vol2/doc15m.pdf) would likely apply, depending on the particular circumstances of the project. 
Scenario 2:  The purpose of a TEA project is to construct, rehabilitate, reconstruct or refurbish an already existing bike path or walkway within a public park.  This p
roject relates to surface transportation but the improvement is primarily intended to enhance the park.  In this case there is no “permanent incorporation of 4(f) land into a transportation facility” and, therefore, no Section 4(f) use.  A Section 4(f) evaluation does not need to be prepared.
Other TEA projects can involve existing transportation facilities such as highways, bridges, and buildings which are expected to have a useful life that is finite and therefore, continually require maintenance or rehabilitation.  While 23 C.F.R. 771.135(f) may apply in certain instances, generally speaking, the rehabilitation of a highway, building or bridge relates to surface transportation but does not rise to the level of a Section 4(f) use (see also Question 4).  
Archaeological planning and research projects that involve the potential use of a significant archeological property are covered by the provisions of 23 C.F.R. 771.135(g) (see Question 5).  Other TEAs may be handled in accordance with this answer.  In complex situations the FHWA Division Office should contact the Headquarters Office of Project Development and Environmental Review or the Office of the Chief Counsel for assistance. 
Note:  This answer supersedes the August 22, 1994; Interim Guidance on Applying Section 4(f) On Transportation Enhancement Projects and National Recreational Trails.
Question B:  Is it possible for a TEA to create a 4(f) resource?
Answer B:  To be eligible for transportation enhancement funding, a proposed activity must relate to surface transportation and not be solely for recreation or other purpose.  Also, the development of parks, recreation areas, or wildlife and waterfowl refuges are not designated eligible TEAs.  Thus, in most cases, the TEA by itself would not create a 4(f) resource, where one did not previously exist.   
That being said, it is possible for transportation enhancement funds to enhance existing 4(f) resources, such as a bikeway or pedestrian facility that is constructed within a park.  The use of TEA funds in this case would not alter the future Section 4(f) status of the park and may add Section 4(f) values that would have to be considered in subsequent projects.  See Question 22 for additional discussion of the use of transportation funds within a park or other 4(f) resource for non-transportation purposes. 
For more information, see the FHWA Final Guidance on Transportation Enhancement Activities; December 17, 1999, and the TE Program Related Questions & Answers; August, 2002, found at the Transportation Enhancement Website (www.fhwa.dot.gov/environment/te/index.htm).

## Museums, Aquariums, and Zoos

- Publicly owned museums or aquariums
- not subject to Section 4(f) unless they are significant historic properties.
- Publicly owned zoos
- evaluated on a case-by-case basis

- Policy Paper Q. 25

**Notes:**
25.  Museums, Aquariums and Zoos? 
Question:  Does Section 4(f) apply to museums, aquariums and zoos?  
Answer:  Publicly owned museums or aquariums will not normally be considered parks, recreational areas, or wildlife and waterfowl refuges and are, therefore, not subject to Section 4(f) unless they are significant historic properties.  
Publicly owned zoos on the other hand, should be evaluated on a case-by-case basis to determine the major purpose of these resources and if they are significant park and/or recreational resources.  To the extent that these resources are considered to be significant park or recreational areas, or are significant historic properties, they will be treated as 4(f) resources 

## Tribal Lands and Indian Reservations

- Federally recognized Indian Tribes are sovereign nations, therefore, their are not “publicly owned”, nor open to the general public, and Section 4(f) does not automatically apply.
- If land owned by a Tribal Government or on Indian Reservation functions as a significant park, recreational area (which are open to the general public), a wildlife and waterfowl refuge, or is eligible for the National Register of Historic Places, Section 4(f) would apply.

- Policy Paper Q. 26

**Notes:**
26.  Tribal Lands and Indian Reservations
Question:  How are lands owned by Federally Recognized Tribes, and/or Indian Reservations treated for the purposes of Section 4(f)?
Answer:  Federally recognized Indian Tribes are considered sovereign nations, therefore, lands owned by them are not considered to be “publicly owned” within the meaning of Section 4(f), nor open to the general public, and Section 4(f) does not automatically apply.  However, in situations where it is determined that land or resources owned by a Tribal Government or on Indian Reservation functions as a significant park, recreational area (which are open to the general public), a wildlife and waterfowl refuge, or is eligible for the National Register of Historic Places, Section 4(f) would apply.

## Traditional Cultural Properties

- Must be eligible for the National Register of Historic Places
- THPO or tribal cultural resources staff should be consulted if the TCP is tribal.

- Policy Paper Q. 27

**Notes:**
27.  Traditional Cultural Properties
Question:  Are lands that are considered to be traditional cultural properties subject to the provisions of Section 4(f)?
Answer:  A traditional cultural property or TCP is defined in the 1990 National Register Bulletin # 38 generally as land that may be eligible for inclusion in the National Register because of its association with cultural practices or beliefs of a living community that; (a) are rooted in that community's history, and (b) are important in maintaining the continuing cultural identity of the community.  Land referred to as a TCP is not automatically considered historic property, or treated differently from other historic property.  A TCP must also meet the National Register criteria as a site, structure, building, district, or object to be eligible for Section 4(f) protection.  
For those TCPs related to an Indian tribe, the Tribal Historic Preservation Officer (THPO) or tribal resource administrator should be consulted in determining whether the TCP is on or eligible for the National Register.  For other TCPs the State Historic Preservation Officer (SHPO) should be consulted.

## Cemeteries

- Not 4(f) resources unless eligible for the National Register of Historic Places
- If human remains are found in an archaeological site, need to consider if the site warrants preservation in place.

- Policy Paper Q. 28

**Notes:**
28.  Cemeteries
Question A:  Does Section 4(f) apply to cemeteries?
Answer A:  Cemeteries would only be considered 4(f) properties if they are significant historic resources, i.e., determined to be on or eligible for the National Register of Historic Places.  
Question B:  Does Section 4(f) apply to other lands that contain human remains? 
Answer B:  Lands that contain human remains, such as graveyards, family burial plots, or Native American burial sites and those sites that contain Native American grave goods associated with burials, are not in and of themselves considered to be 4(f) resources.  However, these types of lands may also be historic properties included on or eligible for inclusion in the National Register.  These sites should not automatically be considered only as archeological resources as many will have value beyond what can be learned by data recovery.  If these sites are National Register listed or eligible and also warrant preservation in place, Section 4(f) applies (see Question 5).  For more information on the subject of historic cemeteries see, National Register Bulletin #41, Guidelines for Evaluating and Registering Cemeteries and Burial Places; 1992.
When conducting the Section 4(f) determination for lands that may be Native American burial sites or sites with significance to a Federally Recognized Tribe, consultation with appropriate representatives from the Federally Recognized Tribes with interest in the site is essential. 

## Section 4(f) in Tiered NEPA Documents

- Completion of tier 1 does not relieve FHWA of the responsibility to study an avoidance alternative in tier 2.

- Policy Paper Q. 29

**Notes:**
29.  Section 4(f) Evaluations in Tiered NEPA Documents
Question:  How should Section 4(f) be handled in tiered NEPA documents? 
Answer:  This issue is addressed to some degree in 23 C.F.R. 771.135(o)(1).  Because the project development process moves from a broad scale examination at the tier-one stage, to a more site specific evaluation in tier-two, does not relieve FHWA from its responsibility to consider feasible and prudent avoidance alternatives to the use of 4(f) resources at the tier-one stage.  Where all alternatives in the second tier analysis use a 4(f) resource, it may be appropriate and necessary to reconsider the feasibility and prudence of an avoidance alternative that was eliminated during the tier-one evaluation phase. 

## LWCFA Section 6(f)

- Land and Water Conservation Fund Act
- Coordination and approval of NPS, DOI required
- Replacement of property (NPS discretion)
- Applies to locations where LWCFA funds were actually used, if determinable
- Consult with LWCFA liaison – In Washington State this is the Interagency Committee for Outdoor Recreation

**Notes:**
COMPARISON CHART LAWSECTION 4(f)SECTION 106SECTION 6(f)Legislative Reference
Section 4(f) of DOT Act National Historic Preservation Act, Section 106 Land and Water Conservation Fund Act, Section 6(f)Type of Legislation PreservationPreservationPreservationPurposeAvoid use of public parks, waterfowl and wildlife refuges and significant historic sites Protect, rehabilitate, restore and re-use districts, sites, buildings, structures and objects significant in American architecture, archeology and culture Preserve, develop and assure the quality and quantity of outdoor parks and recreation areas and refuges for present and future generations Applies to ...US Department of Transportation projects Federal projects Federal projects Affects ...Significant public parks, recreation areas, wildlife and waterfowl refuges, and all significant historic sites "used" for a highway project All properties on or eligible for inclusion on the National Register of Historic Places All projects that impact recreational lands purchased or improved with land and water conservation funds General Procedures Must avoid protected areas, if feasible and prudent; must include all possible planning to minimize harm Must identify and determine the effects of project on subject properties; must give Advisory Council an early opportunity to comment; must avoid or mitigate effects as much as possible Secretary of Interior must approve any conversion of property acquired or developed with assistance under this act Requirements Consultation, avoidance or mitigation Consultation and mitigation when affected Consultation, avoidance or mitigation Coordination with ...DOI, DOA, HUD, State Preservation Officer, State or local agencies with jurisdiction State Historic Preservation Officer, Advisory Council on Historic Preservation, DOI (National Park Service)DOI, state agencies Relationship to other statutes Sections 6(f) and 106 are integral to Section 4(f) compliance Sections 4(f) and 6(f) are not integral to Section 106 process Sections 4(f) and 106 are not integral to Section 6(f) process Relationship to NEPAConsidered in the NEPA process Considered in the NEPA process Considered in the NEPA process 
State and local governments obtain grants through ...
... the Land and Water Conservation Fund Act to acquire or make improvements to parks and recreation areas. 

Section 6(f) of this Act ...
... prohibits the conversion of property acquired or developed with these grants to a non-recreational purpose without the approval of the Department of the Interior's (DOI) National Park Service ... and
... directs DOI to assure that replacement lands of equal value, location and usefulness are provided as conditions to such conversions. 

Where conversions of Section 6(f) lands are proposed for highway projects ...
... replacement lands will be necessary. 

The Section 4(f) evaluation should document the National Park Service's tentative position relative to Section 6(f) conversion.

## Break Time!

## Evaluation and Documentation

- FHWA Technical Advisory T6640.8a

## General Documentation Needs

- Resource applicability or non-applicability
- public ownership, significance, major purpose
- eligibility for the NR (historic properties)
- Avoidance alternatives
- Coordination
- Measures to minimize harm
- Mitigation
- Finding of no feasible and prudent and feasible avoidance alternatives and ...

**Notes:**
Avoidance alternative – must be an actual alternative (a line on the map) not just rejected in concept.

Show property boundaries of eligible sites.

Show what will be taken.

State impacts clearly.

Format the Section 4(f) as a stand-alone document.

## 4(f) Evaluation / Documentation

- Project purpose and need
- 4(f) resources and properties (applicability)
- Use and impacts
- Alternatives considered, including **avoidance** and **minimization**
- Measures to minimize harm and mitigation
- Coordination - significance, impacts, mitigation, land conversions
- Finding of no feasible and prudent alternative

## Avoidance and Minimization

**Avoidance and Minimization**

- Policy Paper – P. 4

**Notes:**
Avoidance Alternatives Section -
- Identify / evaluate location and design alternatives to avoid the  4(f) property (generally, alternatives to either side of the property).
- Where an alternative would use land from more than one 4(f) property, the analysis needs to evaluate alternatives which avoid each and all properties (23 CFR 771.135(i)). 
- design alternatives should be in the immediate area of the property and consider minor alignment shifts, a reduced facility, retaining structures, etc. individually or in combination, as appropriate. 
Hints
Apply consistent engineering standards throughout the project ...

Purpose and need is an essential ingredient in making and supporting the conclusion that no other variations are needed

Detailed discussion of alternatives (for EIS or EA) need not be repeated - reference and summarize. 

When alternatives (avoiding 4(f) resources) have been eliminated from detailed study the discussion should also explain whether these alternatives are feasible and prudent and, if not, the reasons why.

## Feasible / Prudent Avoidance

- Feasible – technically possible, constructible
- Prudent – reasonable, “does it makes sense?”
- Make the case:
- alternative does not meet project purpose and need
- excessive cost of construction
- serious operational or safety problems
- unacceptable social, economic and/or environmental impacts
- excessive community disruption
- combinations of the above

**Notes:**
Feasible and PrudentA term that is integral to the Section 4(f) process, feasible and prudent refers to the viability of an alternative that avoids the use of a Section 4(f) resource. The term "feasible" refers to the constructibility of a project — whether or not it can be built using current construction methods technologies and practices. The term "prudent" refers to how reasonable the alternative is — in essence, whether or not it makes sense. Given a range of options, a transportation agency must select an avoidance alternative if it is feasible and prudent. By contrast, an alternative may be rejected if it is not feasible and prudent. An alternative may be considered not feasible and prudent for any of the following reasons: 
does not meet project purpose and need
excessive cost of construction
severe operational or safety problems
unacceptable impacts (social, economic or environmental) 
serious community disruption
a combination of any of the above 

## Feasible and Prudent

- Overton Park Decision
- Feasible and prudent alternatives do not create truly unique problems
- Truly Unique Factors:
- cost of extraordinary magnitude
- community disruption of extraordinary magnitude** **

- 23 CFR 771.135(a)(2)

## Feasible and Prudent Analysis 

**Nature, Quality, and Net Effect on the 4(f) Resource**

**(Balancing)**

**USE**

**AVOIDANCE**

**Unusual Factors **
**  ****Cost, Community Disruption**

**Overton Park Criteria**

**Notes:**

Feasible and Prudent Alternative balancing test ...  
... in applying the standard of "unique problems"- the nature, quality, and net effect of the taking (after mitigation) of the 4(f) property are considered ...
... to show that there are  truly unusual factors, or cost or community disruption of extraordinary magnitude in avoiding the 4(f) resource 

If truly unusual factors result the avoidance alternatives are not Feasible and Prudent.

________________________

## Slide 68

**Notes:**
Look at impacts on all resources, not just the section 4(f) resources.

## Slide 69

**Notes:**
Need to consider the socioeconomic impacts.

## Slide 70

## Slide 71

## Consider the Net Impact

- Quality of the resource
- Size of use
- Location of use
- Severity use
- Function of portion used
- Remaining function of property after use

## Alternative Analysis/Selection

**Alternative Analysis/Selection**

## Alternative Selection

**Alternative Selection**

**Notes:**
Avoidance Alternatives Section -
- Identify / evaluate location and design alternatives to avoid the  4(f) property (generally, alternatives to either side of the property).
- Where an alternative would use land from more than one 4(f) property, the analysis needs to evaluate alternatives which avoid each and all properties (23 CFR 771.135(i)). 
- design alternatives should be in the immediate area of the property and consider minor alignment shifts, a reduced facility, retaining structures, etc. individually or in combination, as appropriate. 
Hints
Apply consistent engineering standards throughout the project ...

Purpose and need is an essential ingredient in making and supporting the conclusion that no other variations are needed

Detailed discussion of alternatives (for EIS or EA) need not be repeated - reference and summarize. 

When alternatives (avoiding 4(f) resources) have been eliminated from detailed study the discussion should also explain whether these alternatives are feasible and prudent and, if not, the reasons why.

## Alternative Selection

**Alternative Selection**

**Notes:**
Avoidance Alternatives Section -
- Identify / evaluate location and design alternatives to avoid the  4(f) property (generally, alternatives to either side of the property).
- Where an alternative would use land from more than one 4(f) property, the analysis needs to evaluate alternatives which avoid each and all properties (23 CFR 771.135(i)). 
- design alternatives should be in the immediate area of the property and consider minor alignment shifts, a reduced facility, retaining structures, etc. individually or in combination, as appropriate. 
Hints
Apply consistent engineering standards throughout the project ...

Purpose and need is an essential ingredient in making and supporting the conclusion that no other variations are needed

Detailed discussion of alternatives (for EIS or EA) need not be repeated - reference and summarize. 

When alternatives (avoiding 4(f) resources) have been eliminated from detailed study the discussion should also explain whether these alternatives are feasible and prudent and, if not, the reasons why.

## Rules to Alternative Selection

- If a feasible and prudent avoidance alternative is available
- Stop there, you must select it
- If there are no feasible and prudent avoidance alternatives (all alternatives result in a use)
- You must select the alternative that has the least harm to the 4(f) resource

## Potential Mitigation

## *

*** Legal Sufficiency Review**

*****

*****

*****

## Programmatic 4(f) Evaluations

- No exemptions of basic 4(f) requirements
- Optional, not required
- Documentation vs. document
- No DOI coordination or legal sufficiency
- Time savings
- Flexible procedures
- Generally minor 4(f) use
- Agreement with official with jurisdiction is essential

## Programmatic 4(f) Evaluations

- Minor involvement with public parks, recreation areas, and wildlife and waterfowl refuges
- Minor involvement with historic sites
- Use of historic bridges
- Independent bikeway or walkway construction projects (1977 negative declaration)
- Net benefit to Section 4(f) Property (2005)

## Parts of a Programmatic

- Applicability
- Alternatives
- Coordination
- Measures to minimize harm
- Findings
- Approval procedure

## General Applicability

- Improvement is on essentially the same alignment
- 4(f) resource is adjacent to existing highway
- Use of lands or proximity impacts do not impair the use of the remaining land
- Limit on property taken (parks,...)
- Official(s) with jurisdiction must agree with assessment of impacts and mitigation measures

- There are specific criteria for each programmatic

## Applicability Continued

- Federal agency with an interest in the land does not object to land conversion or transfer
- Project does not remove or alter historic buildings, structures, or objects, or remove or disturb archeological resources that are important to preserve in place
- Section 106 determination of no adverse effect
- Generally does not apply to EIS projects

## Programmatic Analysis

- Evaluate avoidance alternatives
- Do nothing
- Improve existing without using 4(f) land
- Building on new location
- Coordination
- Federal agencies with encumbrances
- USCG coordination if a bridge permit is required

## Programmatic Analysis 

- Measures to minimize harm
- Written agreement from Officials with jurisdiction
- Based on agreement with the SHPO/THPO (and ACHP, if needed) via the Section 106 Process
- Findings
- Information on alternatives and measures to minimize harm must support the specific findings of the programmatic evaluation

## Approval / Documentation

- Once the FHWA Division Administrator or designee ...
- ... finds that all of the criteria, procedures, etc. of the applicable programmatic have been satisfied
- Degree of documentation depends on State DOT and FHWA Division Office

## For Further Assistance

**For project-specific questions please start with your Region Environmental Office (or your Highways and Local Programs Area Engineer if you are a City or County) and your FHWA Area Engineer.**
**Steve Yach**
- WSDOT ESO NEPA Specialist
- 509-324-6132
- YachS@wsdot.wa.gov
**Sharon Love**
- Environmental Program Manager
- FHWA Washington Division 360-753-9558
- Sharon.Love@fhwa.dot.gov