HomeMy WebLinkAboutagenda.council.worksession.20080602MEMORANDUM
TO: Mayor and City Council
FR: John D. Krueger, Director of Transportation
THRU: Randy Ready, Assistant City Manager
DATE: May 30, 2008
MEETING DATE: June 2, 2008
RE: Transportation Work Session
• ETA Split Shot Altemative Feasibility Analysis-
Additional Studies
• Evaluation Process for Proposed Changes to an EIS
Preferred Alternative
• Feasibility Study Update-SH 82 - Mazoon Creek
Roundabout to Main Street Reversible Lane
Feasibility Study Update
• SH 82 -Tmscott Intersection Signal Timing
REQUEST OF COUNCIL:
Staff is requesting direction from Council regazding any further action needed on the
reports attached to this memo. Further pursuit of any of these options will likely require
more study, environmental cleazance, and coordination with CDOT. In addition, a new
supplemental Entrance to Aspen Record of Decision (ROD) and/or Environmental
Impact Statement (EIS) may be required.
BACKGROUND:
At the Februazy 19, 2008 Transportation Work Session, Council requested additional
information and analysis of the feasibility studies presented on the Entrance to Aspen:
split shot alternative; reversible lane alternative; and turn restriction/signal timing
1
H: /lynnb/council/2008/eta work session 6-2-08.doc
alternative. Per Council's request, staff and consultants have provided the additional
information and analysis requested as well as a report on the evaluation process for a
proposed changes to an EIS Preferred Alternative.
PREVIOUS COUNCIL ACTION:
• In 2003, Council appointed an S-Curves Task Force to study alternatives for
traffic relief through the S-Curves corridor. This process led to the
implementation of the Main Street Transit Lane as well as the closure of Bleeker,
Hallam and the alley in between to thru traffic from/to Hwy 82.
• In 2006, Council as a member of the Elected Officials Transportation Committee
(EOTC) helped to fund the Reevaluation of the Entrance to Aspen EIS. The
Preferred Alternative was ultimately upheld as still valid.
• In 2007, City staff undertook an intensive public input process regazding the
Entrance to Aspen.
• In 2007, Council adopted a parking rate increase. In 2007, Council also tabled a
residential parking meter expansion which is currently being reconsidered (first
reading scheduled for June 8).
• In 2007, Council as a member of the EOTC approved and funded the construction
of additional bus lanes on SH 82 from Buttermilk to the Roundabout.
• In 2007, Counci] directed staff to further analyze the split shot, reversible lane,
and turn restriction signal timing options that were originally considered as part of
H: /lynnb/council/2008/eta work session 6-2-08.doc
the Entrance to Aspen EIS process in the 1990s and/or the S-Curves Task Force
process.
• At its February 19, 2008 work session, Council reviewed information and analysis
on the split shot, reversible lane, and turn restriction/signal timing options.
Council requested further analysis on these options to be presented at a June 2,
2008 work session.
DISCUSSION:
Feasibility Analysis -ETA Split Shot Alternative, Additional Studies
At the request of the City Council, the Pazsons Transportation Group was retained to
provide further study and analysis of the Split Shot alternative with additional
compazison to the Preferred Alternative. The study evaluates design criteria, roadway
and transit operations, travel times and open space/trail relocations associated with the
Split Shot alternative as well as a discussion of two different options using the existing
SH 82 alignment.
Evaluation Process for Proposed Changes to an EIS Preferred Alternative
Jane. Boand, Senior Environmental Planner for David Evans and Associates has provided
an evaluation process for a new or changed Preferred Alternative selected in an EIS
process. Her memo provides a decision tree that can be used as guidance to evaluate
proposed alternatives and how they may proceed through the National Environmental
Policy Act (NEPA) process. Also, included is some background information on the U.S.
Department of Transportation Act of 1966, Section 4(f) approval process, and regulatory
requirements
H: /lynnb/council/2008/eta work session 6-2-08.doc
Feasibility Study -Roundabout to Main Street Reversible Lane
As directed by City Council, staff directed the engineering firm Schmueser Gordon
Meyer to provide additional study of the feasibility and effectiveness of a reversible
center lane from the Mazoon Creek Roundabout to 7`h and Main over the Castle Creek
Bridge. The attached analysis provides an update to the previous study presented in
February 2008. This update analyzes removing the right of way constraint to attempt to
reduce construction delays and allow the bridge to be expanded to the north side of the
existing structure.
Update -Turn Restriction/Signal Timing -Truscott Intersection
The signal timing changes approved by Council at the February 19 work session were
implemented by PBS&J and CDOT at the SH 82/Truscott intersection on May 13. The
timing changes doubled the cycle length of the signal allowing for the doubling of green
time on SH 82 during the afternoon peak period of 3-6pm. Observations of the signal
timing changes seem to have a positive impact to traffic flow out of town in the
afternoon. The measurement of travel times has been difficult due to the construction of
the bus lanes in this section of SH 82. Using other measurements PBS&J has calculated
that the capacity, green time, and volume of vehicles through that intersection will
increase during the afternoon peak period. Staff and consultant will continue to observe
the timing changes through out the summer and may make minor adjustments if needed.
RECOMMENDATION:
Staff has no recommendations at this time. The main purpose of these follow up studies
is to provide additional information and analysis to Council.
FINANCIAL IMPLICATIONS:
There aze no financial implications at this time. Should Council request further study or
possible implementation of any of these alternatives, staff will return with detailed costs.
4
H: /lynnb/council/2008/eta work session 6-2-08.doc
NEXT STEPS:
Staff is seeking direction from Council as to which, if any of these options, should be
continued to the next level of analysis and study for possible implementation.
ATTACHMENTS:
Attachment A: ETA Split Shot Alternative Additional Studies
Attachment B: Evaluation Process for Proposed Changes to an EIS Preferred Alternative
Attachment C: Feasibility Study Update, Roundabout to Main Street Reversible Lane
Attachment D: Truscott Signal Timing Update, PBS&J
H: /lynnb/council/2008/eta work session 6-2-OB.doc
R.
State Highway 82 Entrance to Aspen
Split Shot Alternative
Additional Studies
Prepared for:
City of Aspen
130 Galena Street
Aspen, Colorado
Prepared by:
Parsons Transportation Group
Glenwood Springs & Denver, Colorado
June 2008
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Entrance to Aspen
Split Shot Alternative Analysis
Additional Studies
At the request of the City of Aspen, additional studies were requested to further evaluate and
define the Split Shot alternative for the SH 82 Entrance to Aspen. The request includes a list of
questions, a request to evaluate additional Split Shot options, and a comparison of those options
to the Modified Direct alternative with phasing for exclusive bus lanes (Preferred Alternative).
1.0 Conceptual Engineering Analysis
1.1 Introduction
The Split Shot alternative consists of using the existing SH 82 alignment from the Maroon Creek
Roundabout (MCR) to 7'" and Main Street as the outbound (westbound) travel solution for
general traffic and buses. Inbound (eastbound) traffic would utilize the existing alignment to
Cemetery Lane, and continue eastbound along a new two-lane one-way roadway that would
cross the Marolt-Thomas Open Space northeast of the Holden Smelting and Milling Complex and
then cross Castle Creek by way of a new bridge that would align with West Main Street.
This alternative utilizes two lanes in each direction, with the left lane being available for general
traffic, and the right lane being a dedicated RFTA bus-only transit lane. The right lane would also
be available for designated emergency vehicles. This design includes provisions for future light
rail transit (LRT) to be constructed next to the inbound lanes on the south-side while maintaining
operation on the general traffic lane and the bus lane.
For further information and details for the general layout and configuration of the Split Shot,
please refer to the report entitled "State Highway 82 Entrance to Aspen Split Shot Alternative
Feasibility Analysis", November 2007, by HDR.
Page 1
1.2 Design Criteria
1.3 Conceptual Options
Different options to the basic Split Shot alternative were developed, as follows:
• Option A-Split Shot as designed with the Cemetery Lane roundabout. The S-curves
are reengineered for one general purpose lane and one bus lane utilizing all
pavement width available to optimize curvature for outbound traffic. (see HDR report)
• Option B-Option described above with agrade-separated intersection at SH
82/Cemetery Lane. (see figure 1)
For comparison purposes two additional options using the existing SH 82 alignment were
developed, as follows:
• Option C-Existing SH 82 alignment (no new roadways across Marolt Thomas Park)
with agrade-separated intersection at SH 82/Cemetery Lane. (see figure 2)
• Option D-Existing SH 82 alignment with the bus lanes added from the Maroon Creek
Roundabout (MCR) to the existing Castle Creek Bridge. (see figure 3)
As requested by The City of Aspen, the Preferred Alternative (modified direct with bus lanes
including a land bridge (tunnel)) is included as a basis for comparison. (see figure 4)
Page 2
The analyses conducted for this study assumes design speeds as follows;
1.4 Roadway and Transit Operations
Under all alternatives and options, a traffic signal is necessary to control traffic and allow safe
pedestrian crossings at 7'h and Main Street. Under the Split Shot alternative and options, the
current transit stop at 8'" and West Hallam Street (SH 82 outbound) will be used for outbound
transit riders. Inbound riders will use a transit stop at 7'" and Main Street. This transit scenario
requires that pedestrians be accommodated at the traffic signal with a pedestrian "walk" phase.
Also, the Split Shot alternative and options require a pedestrian crossing at 8'" and West Hallam
Street, to allow transit riders to safely cross SH 82 outbound. In summary, the split shot will
require additional walking distance by transit users to access outbound and inbound stops.
The Split Shot will impact local traffic patterns. Since outbound traffic will flow only marginally
better than the existing conditions, it is expected that motorists will want to divert into
neighborhoods. It is recommended that existing closures at Bleeker Street, Hallam Street, and 7'"
Street be accomplished as shown on Figure 1
The neighborhood surrounded by the Split Shot (Villas, etc.) will have direct access only in the
outbound direction at Bleeker. If a resident of that neighborhood wants to return to Aspen
inbound, they will have to travel to the Cemetery Lane intersection via North 7'h Street and West
Hallam Street and reverse direction to get onto inbound SH 82. Inbound residents will travel to
the traffic signal at 7`h and Main, take a left turn onto North 7'h Street (outbound SH 82), and turn
left at Bleeker Street to access the neighborhood.
1.5 Travel Times
Travel times were calculated using computer modeling, for the preferred alternative, and the Split
Shot alternative Options A & B. Travel times are described in the table below:
Clnun'Ialvifrt
..r,.. .., ..r.,..
Grade Se arated
travel Avg.
Time Speed(mph)
Travel Avg. Trave
Time Speed(mph) Time
to T" Streef (includes ' Outbour
S curves}
7 ..Street t- o1~Street Inbound
Outbour
1:26
1:18
2:13
22 1:46 19
25 2:03 19
22 1:05 22
12 2:11 13
Page 3
1:27
2
1:06 21
2:54 10
Travel time observations are summarized below:
1. The inbound travel time between Maroon Creek Roundabout (MCR) and 7'" and Main
Street is best for the connections that are "direct", without a pass through Cemetery Lane
(i.e. Preferred Alternative and Split Shot Option B (grade separation).
2. The outbound travel time between 7`h and Main Street and MCR is best for the Preferred
Alternative -for the same reason -the "direct" connection without a pass though the S-
curves and Cemetery Lane.
3. The Main Street section travel times are all about the same because of the trade-off of
delay from the S-curves versus the signalized intersection timing patterns. The Modified
Direct has a greater signalized delay inbound because of the heavier demand for the left
turn onto North 7'h Street. The Split Shot outbound delay is incurred more from the
slowdown at the 7~h and Main curve.
The analysis shows that the Preferred Alternative will perform better for the outbound travel times
than the Split Shot alignments. The choke points at the S-curves and at Cemetery Lane
(roundabout only) are eliminated and speed up the average travel time. The analysis provides a
good snapshot of a PM peak hour with a heavy outbound directional movement. The volumes
used are from the HDR Split Shot analysis, with some corrections for consistency. The analysis
assumes no volume growth based on the 1998 Record of Decision.
Overall, the travel time for the Preferred Alternative is 15-25% less for the westbound (outbound)
direction (3/a minute to 1 Ya minutes per vehicle) than the Split Shot alternative Options A and B.
2.0 Open Space and Trail Relocation Impacts
2.1 Introduction
Open space and trail relocation impacts for the Split Shot options A and B were evaluated as part
of this study. Evaluation of other environmental impacts was not part of this study, and is not
expected to be different than those presented in the previous Split Shot Study. The table in
section 2.3 includes details of the open space impacts.
Page 4
2.2 Trail System
Split Shot alternative options A and B were evaluated for impacts to the Aspen trail system. For
both options on the Split Shot alternative, the Marolt Trail would need to be rerouted around the
proposed roundabout, and the easternmost section of the Marolt Trail and Bergman Trail, as with
the Preferred Alternative, would need to be temporarily rerouted during construction.
Split Shot option B (grade separated intersection) would have extensive impacts to the Marolt
Trail. Due to the excavation necessary to accommodate ramps and the Cemetery Lane
connection 1,241 feet of the Marolt Trail will need to be relocated.
The connections back to the existing trails may be problematic. Grade separation or crossing
under the new Castle Creek bridge would be necessary to ensure the safe connectivity of the trail
system.
2.3 Open Space
Open space impacts for Split Shot Options A and B were evaluated. Impacts are based on
overall acreages affected within the limits of construction. These acreages were compared to the
preferred alternative.
* From HDR Study, ** Does not include deduction for the Tunnel
'** From Record of Decision, Aspen MOU Page 9
On page 12 and Table 4 of the HDR Study, the reported take for the Preferred Alternative is 6.1
acres (after the 2.5 acres are returned). It should be noted that the 6.1 acres is for the entire
corridor from Buttermilk to 7~h and Main Street, including acreages at the former Zoline property,
Aspen Golf/Plum Tree Field, and the Maroon Creek basin. The table provides an exact
comparison of open space impacts for the MCR to 7'" and Main Street segment.
Page 5
The table below compares open space acreages impacted for alternatives and options.
2.3 Open Space (continued)
In summary, the open spaces 'Makes" for Split Shot options A and B are greater than for the
Preferred Alternative. This will have NEPA implications. Also, all Split Shot options interrupt the
connectivity of open space from the Aspen Golf Course to the Marolt-Thomas Open Space and
beyond as compared to the Preferred Alternative.
3.0 Comparison Summary
In summary, travel times for either Split Shot option are about 15-25% greater than the Preferred
Alternative. Affected open space area for the Split Shot options are greater than that of the
Preferred Alternative, and do not allow for the return of any open space.
4.0 Discussion of Options on Existing SH 82 Alignment (options C and D)
As requested by the City of Aspen, two additional options using the existing SH 82 alignment
were developed, as follows:
• Option C-Existing SH 82 alignment (no new roadways across Marolt Thomas Park)
with agrade-separated intersection at SH 82/Cemetery Lane. (see figure 2 )
• Option D-Existing SH 82 alignment with the bus lanes added from the Maroon Creek
Roundabout (MCR) to the existing Castle Creek Bridge. (see figure 3 )
Option C will create a grade separated intersection for existing SH 82 and Cemetery Lane. This
option will eliminate the traffic signal at SH 82/Cemetery Lane, but would have no affects on
travel times or safety through the "S curves". It will utilize the Castle Creek Bridge in its existing
configuration. Resources impacted by this option include the ABC trail (north side of SH 82),
Marolt Trail, Bugsy Bernard Park, and the north edge of the Marolt -Thomas Open Space. It is
likely that this option would require a full analysis and evaluation of impacts to open space and
recreational resources. Buses would continue to operate in the current travel lanes in mixed traffic
and would experience no improvement of travel times.
Option D adds widening on the existing SH 82 alignment for exclusive bus lanes from the Maroon
Creek Roundabout (MCR) to the existing Castle Creek Bridge. This option includes the signalized
intersection at SH 82/Cemetery Lane, and would also utilize the Castle Creek Bridge in its
existing configuration.
Page 6
Operationally, buses would share the outbound right turn lane and acceleration lane at the SH
82/Cemetery Lane intersection with mixed traffic. There will be about 1000 feet of exclusive bus
lane available in the upvalley direction, and about 600 feet downvalley.
Resources affected include the margin of the Aspen golf course, Marolt Open Space, and the
ABC trail. In summary, this option would provide marginal benefit to bus travel times, and have
potential impacts to section 4(f) resources (open space and trails).
List of Figures
Figure 1, Split Shot alternative with grade separation (Option B)
Figure 2, Existing SH 82 with grade separation (Option C)
Figure 3, Existing SH 82 with bus lanes from MCR to Castle Creek Bridge (Option D)
Figure 4, Modified Direct alternative with Bus lanes (Preferred Alternative)
Page 7
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MEMORANDUM
DATE:
TO:
FROM:
SUBJECT:
May 28, 2008
Ralph Trapani, Principal Project Manager -Parsons Transportation Group
Jane Boand, Senior Environmental Planner
Evaluation Process for Proposed Changes to an EIS Preferred Alternative
PROJECT: SH 82 Entrance to Aspen Split Shot Alternative -Additional Studies
PROJECT NO: PRSN0000001
COPIES:
The following describes the federal NEPA evaluation process for a new or changed Preferred Alternative selected
in an Environmental Impact Statement (EIS). Also included is an evaluation of the proposed Split Shot alternative
that follows this process to identify the likely type of NEPA that would be required by the Federal Highway
Administration (FHWA) (Figure - ElS Decision Process far Changes to the Preferred Alternative). A description
is also included of the Section 4(f) process that may be required as part of the evaluation process.
Changes to an EIS Preferred Alternative
The Federal Highway Administration allows changes or modifications to a Preferred Alternative that was
identified through an Environmental Impact Statement (EIS) process and selected in the Record of Decision
(ROD). However, under the National Environmental Policy Act (NEPA) any change to a selected Preferred
Alternative would require additional NEPA evaluation and documentation to determine if that change would
result in greater, less or different environmental impacts. According to FHWA regulations (Code of Federal
Regulations 23 CFR 771.128-130), such documentation ranges from a simple memo to the EIS file (for a
modified alternative that clearly results in less environmental impact) to a new Supplemental EIS/Record of
Decision (for an alternative that would result in new significant impacts). If the potential significance of
environmental impacts is not known, new environmental studies may be conducted through an Environmental
Assessment (EA) process to make that determination. If an alternative was fully evaluated in the original EIS but
was not selected as the Preferred Alternative, a revised ROD may be prepared to document the new Preferred
Alternative.
The type of required NEPA documentation is determined by the FHWA based on information provided by CDOT
and local agencies. The decision process for determining the type of required NEPA documentation is shown in
the following figure - ElS Decision Process for Changes to the Preferred Alternative.
If a new EA or a Supplemental EIS (SEIS) is required, a modified NEPA process must be followed. Steps include
comparing the new alternative to the previous preferred alternative, evaluating any different environmental
impacts, and identifying necessary additional mitigation. Unlike the original EIS, however, a full public and
1331 17th Street, Suite 900 Denver Colorado 60202 Phone: 720.946.0969 Facsimile: 720.946.0973
Ralph Trapani, Principal Project
Manager -Parsons Transportation
Group
May 28, 2008
Page 2
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Page 3
agency scoping process to identify any new issues or concerns is not required. However, if the public or an
agency identifies any issues that may affect the new alternative, those issues must be reasonably evaluated.
To the extent practicable, the EA, SEIS or revised ROD must be provided to the same persons, organizations and
agencies that received the original EIS. Comments received must be addressed before a Finding of No Significant
Impact (FONSI) or ROD can be signed and the new Preferred Altemative approved. No other activities (final
design, right-of-way acquisition, allocation of funds or construction) can begin before FHWA approval of the
FONSI or ROD, except for areas outside of the "focus area" of the revised alternative (see discussion on Path E
below).
Example -Split Shot Alternative Options
Two versions of a proposed "Split Shot" alternative have been proposed and are under evaluation (see "Split Shot
Alternative Analysis -Additional Studies", Pazsons Transportation Group 2008). Option A includes a roundabout
at Cemetery Lane and Option Breflects agrade-separated intersection at Cemetery Lane. Under both options, a
new two-lane road would extend on a more southerly alignment compared to the Preferred Alternative and would
cross both pazklands and trails. Split Shot Options A and B were evaluated to determine what type of NEPA
documentation may be required by the FHWA using the decision process shown in the figure (Paths A-E).
On [he eastern portion of the alignment, the Split Shot alternative is substantially different from the Preferred
Altemative (Modified Direct) that was fully evaluated and approved in the original EIS. The Split Shot is
therefore not an "alternative fully evaluated in the EIS but was not the Preferred Alternative" and is not eligible
for documentation in a revised ROD (Path D).
The footprints of the Split Shot options have an overall greater footprint and traverses more parkland acreage than
the Preferred Alternative. Therefore, this alternative is not likely to result in less adverse impact, and a memo to
the original EIS file would not be sufficient (Path C).
The Split Shot alternative options modify only the eastern portion of the original EIS Preferred Alternative, and
much of the original alignment would be unaffected. Therefore, this modification could be considered a change
that is a "location or design variation for a limited portion of the overall project". Under this definition, a new
Supplemental EISBOD would be required (Path E). An SEIS can be focused only on the changed portion of the
alignment, and there is no requirement to suspend project activities (ROW acquisition, construction, mitigation)
for the portion of the project area that is already constrncted or not directly affected.
The Split Shot options would require more ROW within parklands, which are protected as Section 4(f) resources
(49 U.S.C. 303). If there is no other "feasible and prudent"t alternative, the 4(f) use could be approved if the Split
Shot alternative results in the "least overall harm"Z by reflecting all possible planning to minimize harm or
mitigate for adverse impacts. This finding must be approved by the FHWA, although the City of Aspen does have
input into the finding as the "official with jurisdiction3s.
Ralph Trapani, Principal Project
Manager -Parsons Transportation
Group
May 28, 2008
Page 4
Other environmental resources must also be evaluated (noise, visual quality, biological resources, etc.) to
determine whether any significant environmental impacts may result from the Split Shot alternative. If it is
unknown whether significant impacts may result, additional studies and/or an Environmental Assessment (EA)
would be required (Path B). The purpose of an EA is to determine if significant environmental impacts are likely
to result from the Preferred Alternative. If the EA process finds that no significant impacts would result, the
process is concluded with a Finding of No Significant Impact (FONSI). If significant impacts are likely, a new
SEIS/ROD must be prepared (Path A).
In summary, the major environmental difference between the original Preferred Alternative and the Split Shot
options appears to be the greater use of Section 4(f) resources. A Section 4(f) evaluation would be needed to
demonstrate the extent to which the Split Shot alternative could be mitigated, minimized or otherwise enhanced in
order for the FHWA to conclude that it would result in the least overall harm and can be approved. Overall, it
seems that the most appropriate NEPA documentation for the Split Shot altemative would be Option E (new
SEIS/ROD but project activities outside of the affected area may continue) with a new Section 4(f) evaluation.
The new SEIS would focus only on the Split Shot alternative and does not need to include other new alternatives.
However, public and agency comments on the Split Shot options must be considered, and the FHWA must
determine that the SEIS/ROD and the Section 4(f) evaluation identify adequate mitigation for any adverse
impacts.
L An alternative is no[ feasible if i[ cannot be built as a matter of sound engineering judgment. An alternative is not
prudent if: a) it results in unacceptable safety or operational problems; b) reasonable mitigation does not effectively
address impacts, c) results in additional construction, maintenance, or operational costs of an ex[raordinazy magnitude, d)
causes other unique or unusual factors, ore) involves multiple factors that while individually minor, cumulatively cause
unique problems or impacts of extraordinary magnitude (23 CFR 774).
2. Least overall harm is determined by balancing the following factors: a) the ability to mitigate adverse impacts [o each
Section 4(f) property (including any measures that result in benefits [o the property); b) the relative severity of the
remaining hazm, after mitigation, to [he protected activities, attributes or features that qualify each Section 4(f) property
for protection; c) the relative significance of each Section 4(f) property; d) the views of the official(s) with jurisdiction
over each Section 4(f) property; e) the degree to which each alternative meets [he purpose and need for the project, f)
after reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f); and g)
substantial differences in costs among the alternatives (23 CFR 773.3c).
3. The official(s) with jurisdiction are the official(s) of the agency that owns or administers the property in question (23
CFR 774.17 Definitions).
Attachments/Enclosures: Figure
Initials: jebo
File Name: RevisedAlttechmemo05-27-OS
Project Number: PRSN00001
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Monthly Newsletter
March 2008
Section 4(f7 Final Rule: New Guidance on a Complex Regulation
Section 4(f), the statute that protects public parks, recreational areas,
wildlife and waterfowl refuges, and public and private historical sites
from use by proposed transportation projects, is one of the most
sMngent environmental laws related to transportation. Its requirements
involve judgments that elude easy explanation and are often difficult to
interpret with a great deal of confidence. As a result: Section 4(f) has
become the most frequently litigated environmental statute in the
Federal Highway Program aside from the National Environmental
Policy Act (NEPA). It Is also the most frequent cause of court
injunctions delaying highway projects? If Section 4(f) compliance
becomes an issue during the preparation of an Environmental Impact
Statement (EIS), project approval can take additional time. Under Section 4(f) requirements,
when a proposed suspension bridge
On March 12, 2008, the Federal Highway Administration (FHWA) and was found to pose the possibility of
Federal Transit Administration (FTA) published a Section 4(f~ Final adverse impacts to Fort McHenry, the
opt ~ where Francis Scoa
Rule In the Federal Register to help clarify the 4(f) approval process K
ey penned "The Star- Spangled
and simpl'dy its regulatory requirements. This month's newsletter Banner; planners revisited the
provides a first took at the Final Rule, highlighting key changes made, alternatives and chose to buiht a
to the 4(f) regulat(on as required by Section 6009 of the Safe tunnel under the Baltimore Harbor
Accountable Flexible. Efficient Transportation Equ~ Act: A Legacy for instead. (Photo courtesyof the
Users (SAFETEA-LU).
NaRanal Park Service)
Background to Section 4(f)
More Information Established in the U.S. Department Of Transportation Act of 1966, Section 4(f) was designed to protect
,..._._..._ ................. publicly owned parks, recreational areas, wildlife and waterfowl refuges, and public and private historical
Websde Feedback sites from use by transportation projects unless the Administration determines that there is no'Yeasible
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, and prudent" avoidance alternative and that all possible planning to minimize harm" has occurced.
Section 4(f) originated during the peak period of Federal highway construction with the goal of preserving
urban parks and historical sites that were In jeopardy of being destroyed.
Early case law strictly interpreted what qualfied as a "feasible and prudent" avoidance alternative. In its
1971 Overton Park deasionz ,the U.S. Supreme Court articulated a very high standard for compliance
with Section 4{f). In the years that followed, however, courts applied the Overton Park ruling differently in
similar situations, reaching diverse conclusions about the extent to which certain mitigating factors may
be considered in determining whether or not an avoidance alternative is "Feasible and prudent"
Two important changes to the Section 4(f) process occurred in 2005 In connection with Section 6009 of
SAFETEA-LU. First, the process for approving projects that will have de minlmis impacts on property
protected by Secoon 4(f) was simplified. The analysis of avoidance altemattves Is no longer required
when a transportatlon use of a Section 4(f) property is determined td have a de minimis Impact. Second,
the Secretary of Transportation was directed to clarify which factors to consider and which standards to
apply for determining the "prudence and feasibility" of alternatives that avoid the use of Section 4(f)
property.
In response to SAFETEA-LU's directive, FHWA and FTA published a Notice of Proposed Rulemaking
(HP_RM) containing modifications to the existing 4(f) regulatons on July 27, 2008. The NPRM received
37 responses from state and regional transportation agencies, trade associations, nafional and
environmental advocacy groups, Federal agencies, a state historical preserva8on officer, and two
members of the public. After carefully considering aII of the submitted comments, FHWA and FTA
published their Final Rule, Tide 23 pf the Code pf.Federal Reg41at42s ~CFI~ Part 774;_ Park. s,
Recre 'pn Areas,, Wild„I'rfe and Waterfowl Re_fu~es. and Historic SltesjSection 4(f~), in the Federal
Register on March 12, 2008. The new rule will govern all 4(f) approvals granted as oT the effective date.
Introducing the Final Rule: 23 CFR Part 774
While Secfion 4(f) remains codfied in law at Title 49 United
SS33L~£.Cpde~USC~~303 and 2$U$G..§._1.3.6. the regulation
Implementing this law has been moved from 23 CFR 771,
FHWA's NEPA implementation regulatlon, to 23 CFR 774. in
order to highlight that Section 4(f) Is one of numerous social,
economic, and environmental issues that must be considered
under the "umbrella" of the environmental review process. In
addition to being assigned a new location, the regulation has
been reorganized to improve clarity and readability (see
sidebar).
While a number of sections, such as "Timing" and
"Constructlve Use Determinations," remain largely unchanged,
the Final Rule makes five princlpal changes to the Section 4(f)
regulation:
Structure of the New Section 4
(t)
774.1 Purpose
774.3 Section 4(f) Approvals
774.5 Coordination
774.7 Documentation
774.9 Timing
774.11 Applicability
774.13 F~cceptions
774.15 Construcfive Use
Determinations
774.17 Definitions
Defines 'Yeaslble and prudent": The Final Rule defines a
"feasible and prudent" avoidance alternative as one that "avoids using SecBon 4(f) property and
does not cause other severe problems of a magnitude that substantially outweighs the Importance
of protecting the Sectlon 4(f) property." The definition emphasizes that the use of SecBon 4(f)
property is to be balanced against competing factors, with a "thumb on the scale' in favor of
preserving the Section 4(f) property. The competing factors must pose the threat of severe
problems or Impacts. The definition describes an altemafive as not feasible iF it cannot be
constructed on the basis of sound engineedng Judgment. A list of factors with a severity that may
rise to the level at which an alternatve would qual'rfy as "not prudent" is included. The definition of
feasible and prudent is located in section 774.17.
2. Outlines clear criteria for selecting the alternative that causes the least overall harm: For projects
where all of the reasonable altematlves involve some use of Sectlon 4(f) property, the Final Rule
lists factors that are to be balanced and weighed when making a decision as [o which altematlve
will cause the least overall harm. These criteda are located in sec8on 774.3(c). Once that
alternative has been selected, ail reasonable measures to minimize that harm or mitlgate adverse
impacts to the property (n question must be included in the project before Section 4(f) approval
can be granted.
3. Defines and implements the procedures for determining
a de minimis impact: The procedures for determining de RELATED WORK: 6009
minimis impacts to 4(f) resources, which were outlined EVALUATION STUDY
in the FHWA and FTA guidance document issued on sedan 0009(c) of SAFETEA-LU requires
December 13, 2005, are formally codified in regulation that the u.s. Department of transportation
through the new Final Rule. The Final Rule ensures that examine, evaluate, and report on the
current Section 4(f) regulations are consistent with the effecltveness of the new section 4(t)
Section 4(f) statute, as amended by SAFETEA-LU. In provisions. In coordina9on with the
addition to formally Implementing the procedures for TransportaBon Research Boars, FHwA
and FTA are curently undertaking an
determinin a de minlmis im act, the Final Rule defines
9 P evaluation study, which includes an
a de minlmis impact as one that does not adversely examinatan of:
affect the features, attributes, or actlvitles qualifying the
property for protection under Section 4(f). FHWA elSO s processes used to implement Section
plans to update its Sectibn 4(f) Policy Paper to reflect 0009(c), with an analysis of resulting
SAFETEA-LU and the Final Rule once the latter takes eificiendes.
effect. Requirements for de minimis impact a post-conswction effectiveness of
determinations are located in section 774.3(b), 774.5(b), impact mitigation and avoidance
774.7(b), and within the definitions in 774.17. commitments adopted as pan of
protects.
4. Updates exceptions to Section 4(f) requirements: The a Total number of projects determined b
Final Rule updates a number of existng exceptions to
the Section 4(f) requirements, such as clarifying the have de minimis impacts.
applicability of the exception for restoration,
rehabilitation, or maintenance of historical transportation
facilities, and for the ftrst tlme codifies several new exceptions that advance the regulation's
preservatlon purpose. These include:
• The Interstate System and some of its individual elements
° Certain trails, paths, sidewalks, bikeways, and recreatlonal faciltes that are located within
the transportation right of way
• Transportation enhancement projects and mitiga0on activities where use of the Section 4(f)
property is solely for the purpose of preserving or enhancng an activity, feature, or
attribute that qualifies the property for Section 4(f) protection
The seven 4(f) exceptions are located in section 774.13.
5. Clarifies the option of applying a Programmatic Section 4(t) Evaluation: The Final Rule makes it
dear that a Programmatic Evaluation merely establishes a simpler approach to compliance for
certain lasses of projects and does not in itself provide an exemption to Section 4(f)
requirements. The new rule specifies the process for applying an existing Programmatic
Evaluafion as well as the process for developing a new one. Requirements for Programmatic
Evaluations are located in section 774.3(d) and 774.5(c).
The Final Ruie will take effect on April 11, 2008.
Sources
~ htfn://www.sectlon4fcom/case studies.htm
s For more information on the Overton Park case, visit httpJ/www_secton4fcpm/case overton,htm.
Contact Information
Lamar Smith, CEP
Federal Highway
Administration
'Office of Protect
Development
and Environmental
Review
1200 New Jersey
Avenue, SE
Washington, DC 20590
202-366-8994
Lama r.Smith(o~d ot. gov
Joseph Ossi
Fedeal Transit
Administration
Office of Planning and
Environment
1200 New Jersey
Avenue, SE
Washington, DC 20580
202-366-1613
Joseo h.OssiCrDdot.g ov
Look What's New
ACHP ONLINE COURSE FREE UNTIL APRIL 30a' - For a limited time,
ACHP is offering the course "working effectively with Tribal
Governments" for free. You can access it at www.GoLeam.gov (click on
the thumbnail to go to tribal training). The course takes about an hour to
complete, and includes modules on tribal concepts, Federal Indian law
and policy, and cultural orienta0on.
TELL US WHAT YOU THINK - Do you have a newsletter topic you'd like
to read about? Are the newsletters helpful? Your feedback is wanted!
Please send any comments or questions to
esnewsletter@volpe, dot.gov.
"Successes in Stewardship" is a Federal Highway Administration newsletter highlighting current
environmental streamlining practices from around the country. To subscribe, cell (617) 494352 or email
esnewsletter(afvoloe.dot gov.
__ _..._
FHWA Home I A~9SiS-tt;: HEP Home I Site Mao i Privacy Pdicv I F~
~ FNWA
Unked States Department of Transportation -Federal Highway Administration
§ 771.127
DOT Order 460D.13 which implements
Executive Order 12372. When filed with
EPA, the final EIS shall be available
forpublic review at the applicant's of-
Aces and at appropHate Administra-
tion offices. A copy should also be
made available for public reWew at in-
stitutions such az local government of-
fires, libraries, and schools, az appro-
pHate.
§ 771.127 Retord of decision.
(a) The Administration will complete
and sign a record of decision (ROD) no
sooner than 30 days after publication of
the Anal EIS notice rn the FEDERAL
REG1S'18R or 90 days after. publication
of a notice for the draft EIS, whichever
is later. Thee ROD will present the basis
for the decLSion az specified In 40 CFR
1505.2, summarize any mitigation meas-
uras that will be Incorporated th the
protect and document any required seo-
tion 4(f) approval in accordance with
§771:135(I).Until any required ROD has
been signed, no further approvals may
be given except for administrative ac-
tlWtles taken to secure further proteM
funding and other activities consistent
with 40 CFR (506.1.
(b) Tf the Administration subse-
quently wishes ro approve an alter-
natlve which was not identified as the
preferred alternative but was fully
evaluated in the final EIS, or pc~oposes
to make substantial changes ro the
mitigation measures or findings dis-
cussed in the ROD, a revised ROD shall
be subject to review by those Adminis-
tration offices which reviewed the final
EIS under §77I.125(c). To the extent
practicable the approved revised ROD
shall be provkied ro all persons, organi-
zations, and agencies that received a
copy of the final EIS pursuant to
§77L125(g).
§771.129 Re-evaluations.
(a) A written evaluation of the draft
EIS shall be prepared by the applicant
in cooperation with the AdmiNstra[fon
if an acceptable final EIS !s not sub-
mitted to the Administration within 3
.years from the date of the draft EIS
circulation. The purpose of this evalua-
tion is to determine whether or not a
supplement to the draft EIS or a new
draft EIS is needed.
23 ~R Ch. I (4-1-99 Ediliotq
(b) A written evaluation of the final
EIS will be required before further ap-
provals may be granted if major steps
to advance the action (e.g., authoHty
to undertake final design, authority to
acquire a significant portion of the
Hght-of--way, or approval of the plans,
apecWcations and estimates). have not
occurred within three years after the
approval of the final EIS, final EIS sup-
plement, or the last motor Administra-
tion approval or gram.
(c) After approval of the EIS, FONSI,
or CE designation, the applicant shall
wnsult with the Administraton prior
ro requesting any major approvals or
gronu to establish whether ar not the
approved environmental doament or
CE designation remains valid for the
requested Administ~at[on action.
These consultations will be docu-
mented when determined necessary by
the Administmtion.
152 FR 32800, Aug. 28, 1887; 53 FR 110A8. Apr.
5. lsml
Ii77L130 Supplemental environmental
impart statements
(a) A draft EIS, iinal EIS, or supple-
mental EIS may be supplemented at
a`ry time. An EIS shall be supple-
mented whenever the Administration
determines that
(1) Changes ro the proposed action
would result m significant envlron-
men[al impacts that were not evalu-
ated in the EIS: or
(2) New Information or clrcunutances
relevant to environmental concerns
and bearings on the proposed action or
its impacts would result in significant
environmental impacts not evaluated
in the EIS.
(b) However, a supplemental EIS w111
not be necessary where:
(I) The changes ro the proposed ac-
tlon, new infonnatlon, or new cir-
cumstances result in a lessening of ad-
verse environmental impacts evaluated -
in the EIS without causing other envi-
ronmental impacts that are significant
and were not evaluated In the EIS; or
(2) The Administration decides to ap-
prove an altematlve fully evaluated 1n
an approved final EIS but not identi-
fied az the preferred alternative. In
such a case, a revised ROD shall be pre-
pared and circulated in accordance
with §771.127(6)•
aaz
Federal Highway Administration, DOT
(c) Where the Administration is un-
certain of the signlfirance of the new
impacts, the applicant will develop ap-
pmprlate environmental studies or, If
the Administration deems appropriate,
an EA to assess the lmpaczs of the
changes, new Information, or new cir-
cumstances. if, based upon the studies,
the AdmlNStratlon determines that a
supplemental EIS Ls not necessary, the
Administration shall so indicate in the
project file.
(d) A supplement is to be developed
using the same process and format (i.e.,
draft EIS, final EIS, and ROD) as an
original EIS, except that sniping is not
required.
(e) A supplemental draft EIS may be
necessary for UMTA major urban mass
-transportation mvestmenzs if there is
a substantial change 1n the level of de-
ta[1 on project impacts during project
planning and development. The supple-
ment will address site-specific impacts
and refined cost estimates that have
been developed since the original draft
E[S.
(t) In some cases, a supplemenral EIS
may be required to address issues of
limited scope, such as the extent of
proposed mitigation or the evaluation
of location or design variations for a
limited portion of the Overall project.
Where this is the case, the prepazation
of a supplemental EIS shall not nec-
essarily:
(1) Prevent the granting of new ap-
provals;
(2) Require the withdrawal of pre-
vious approvals; or
(3) Require the suspension of project
activities; for any attivlty not directly
affected by the supplement If the
changes in question are of such mag-
nitude to require a reassessment of the
entire action, or more than a limited
portion of the overall action, the Ad-
ministration shall suspend any activi-
ties which would have an adverse envi-
ronmental impact or limit the choice
of reasonable alternatives, until the
supplemental EIS is completed.
§771.131Emergency action proce-
dures.
Requeszs for deviations from the pro-
cedures in this regulation because of
emergenty droumstances (40 CFR
1506.11) shall be referred to the Admin-
§771.135
istration's headquarters for evaluation
and decision after consultation with
CEQ.
$ 771.133 Compliance with other re-
quirements.
The final EIS or FONSI should docu-
ment compliance with requirements of
all applicable environmental laws, Ex-
ecutive orders, and other related re-
quirements. if full compliance is not
possible by the time the final EIS or
FONSI >s prepared, the final EIS or
FONSI should reflect consultation with
the appropriate agencies and provide
reasonable assurance that the require-
ments wiD be met. Approval of the en-
vironmental document constitutes
adoption of any Admimstratlon find-
ings and determinations that are con-
tained therein. The FEFNA approval of
the appropriate NEPA document will
constitute izs finding of complfance
with the report requirements of 23
U.S.C. 128.
§ 771.135 Sectioa 9(1) (49 U.S.C. 303).
(a)(1) The Administration may not
approve the use of land from a signlD-
cant publicly owned public park, recre-
ation area, or wildlife and waterfowl
refuge, or any significant historic site
unless a determination is made that:
(i) There 1s no feasible and prudent
alter~tlve to the use of land from the
property; and
(1l) The action includes all possible
planning ro minimiu harm to the
property resulting from such use.
(2) Supporting information must
demonstrate that there are unique
problems or unusual factors involved Sn
the use of alternatives that avoid these
properties or that the cost, social, eCO-
nomlc, and environmental impacts, or
community disruption resulting From
such alternatives reach extraordinary
magnitudes.
(b) The Administration will deter-
mine the appliwtlon of section 4(f).
Any use of lands from a section 4(t)
property shall be evaluated early in the
development of the action when alrer-
natives to the proposed action are
understudy.
(c) Consideration under section 9(f) is
not required when the Federal. State,
or local officials having jurisdiction
over a park, recreation area or refuge
403
(/~ ~.
U.S. Deparhrent
I of Transportation
Fedarai Highway
i Adminlstratfon
Office of Planning, Environment and Realty
Project Development and Environmental Review
March 1, 2005
7~ble of conEenffi
INTRODUCTION
Purpose ........................................................................................................ . 1
Important Points ........................................................................................... . 2
SECTION 4(f) EVALUATION
Section 4(f) Format and Approval ................................................................ .. 4
Alternative Analysis ...................................................................................... .. 4
Feasible and Prudent Standard ................................................................... .. 5
Examples of tire Altemalive Seledlon Process ........................................... .. 6
Measures to Minimize Harm and Mitigation ................................................. . 7
Coordinatlon ................................................................................................. . 8
Programmatic Section4(f)Evaluations ........................................................ . S
SECTION 4(t) APPLICABILITY
1) Use of Resources .................................................................................. . 10
a use
B. constructive Use
G TemporaryOcxiupanq
2) Public Parks, Public Recreation Areas and Wikll'rfe antl
Waterfowl Refuges ....................................................................... . 11
A. Publidy Owned Park. Recreation Area or W ildtife and
Waterfov Refuge
B. Significant Park, Recreation Area, or Wildlife and
Watertowl Refuge
C. Public Access
D. Easements antl Lease Agreements
3) Historic Sites .......................................................................................... . 73
A. Section 4(t) Signi0pnce
B. Sedicn 106 Adverse Eifed and Section 4(f) Use
C. Historc Districts
D. Historic Property Bountlary
E. National Historic Lantlmarks
4) Historic Bridges, Highways and Other Trensportation Facilities ............ .. 15
a Historic Bridges and Highways
B. Historic Bridge Replacement
C. Donations of Historic Bridges
D, Other Historic Transportation Fadlities
i
5) Archeological Resources ........................................................... .............. 16
A. General Applipbility
B. Sites Discovered During ConsWCtion
C. Archeological Districts
6) Public Multiple-Use Land Holdings ............................................ .............. 17
7) Late Designation of 4(f) Resources ............................................ ............. 17
8) Wild and Scenic Rivers .............................................................. .............. 17
A. Designated Wild and Scenic Rivers
B. Rivers Under Study
9) Fairgrounds ................................................................................ .............. 18
10) School Playgrounds ................................................................... .............. 19
11) Golf COUrses .............................................................................. .............. 19
A. Public Golf Courses
B. Military Golf Courses
12) User or Entrance Fees ............................................................... .............. 19
13) Bodies of Water .......................................................................... ............. 20
14) Trails ........................................................................................... ............. 20
A. National Trails System Ad
B. Trails on Pdvate Lantl
0. Trials on Highway Rightsof-Way
D. Recreational Trails Program
15) Bikeways .................................................................................... ............ 21
16) Joint Development (Park with Highway Corridor) ....................... ............. 21
17) Planned 4(f) Resources .............................................................. ............. 22
16) Temporary Reaeadonal Ocwpancy or Uses of Highway
Rights-of-Way ............................................................................. ............. 22
19) Tunneling .................................................................................... ............. 22
20) Wildlife and Waterfowl Refuges .............................................................. 23
A. 4(f) Wildlife and Waterfowl Refuges
B. Conservation Easements
21) Air Ri9hts ................................................................................................. 23
ii
22) NoraTransportation Use of 4(f) Resources .......................................... ... 23
23) Scenic Byways ..................................................................................... ... 24
24) Transportatbn Enhancement Projects ................................................. ... 24
A. General Appligb0ity
B. Creation of Future 4(~ Resources
25) Museums. Aquariums and Zoos .......................................................... .... 26
26) Tnbal Lands and Indian Reservations ................................................. .... 26
27) Traditional Cultural Propertias .............................................................. ... 26
28) Cemeleries ........................................................................................... ... 26
A. General Applicability
B. Other LarMs with Human Remains
29) Section 4(f) Evaluations in Tierad NEPA doamenls ........................... ... 27
30) Department of the Interior Handbook on Departmental Review
of Section 4(f) Evaluations (2002) ........................................................ .....27
APPENDIX A
Analysis of Case Law ....................................................:............................ .... 28
APPENDIX B
Section 4(f) Evaluation Diagram ............................................................... .... 35
iii
INTRODUCTION
Section 4(f) was seated when the United States Department of Transportation (USDOT) was formed in
1966. It was initially codified at 49 U.S.C. 1653(f) (Section 4(f) of the USDOT Act of 1966) and only
applies to USDOT agendes. Later that year, 23 U.S.C. 138 was added with somewhat different
language, whidr applied dnly to the highway program. In 7983, Section 1663(f) was reworded without
substantive change and recodified al 49 U.S.C. 303. In their final forms, these two statutes have rw real
practical dist~ctlon and are still commonly referred to as Secfbn 4(f):
9t is hereby declared to be the national polkry that spedal effort should be made to
presenre the natural beauty of the countryside and public park and recreation lands,
vn7dlife and waterfowl refuges, and historic sties. ibe Secretary of Transportation shall
cooperate and consult wlth the Secretaries of the Interior, Housing and Urban
Developmenl,~and Agdcufture, and w8h the States in developing irensportation plans and
programs that indude measures to maintain or enhance the natural beauty of the lands
traversed. After the effective date of the Federal-Akl H~hway Ad of 1968, the Secretary
shall not approve any program or project (other than any project for a park road or
parkway under sedron 204 of this title) which requires the use of any publldy owned land
from a public pads, riecreation area, or wrMlife and waterfowl refuge of natonal, Spate, or
local signlRcance as determined by the Federel, State, or krcal o/fidals having judsdicflon
thereof, or any land from an histodc site of national, State, or local sign~cance as so
determined by such o1ricials unless.(1) there Is rro feas/ble and prudent aRemaffve to the
use of such land, and (2) such program indudes all possible planning to minimize harm
to such party, recreational area, wrkllife and watedow/ refuge, or historic slte resulting
Gom such use. In carrying out the national policy dedared in this section ere Secretary,
In cooperation with the Secretary of the Interior and appropdate State and local otrdals,
is authodzed to conduct studies as to the most feasible Federabaid routes for the
movement of motor vehicular traffic through or around national parks so as to best serve
the needs of the Gaveling public while preserving the natural beauty of these areas"
23 U.S.C. 138
The Federal Highway Administration (FHWA) originally issued the Section 4(t) Policy Paper in September
1987. There was a minor amendment in 1989 adding Iwo additbnal questlons and answers. This 2005
paper provides uptlated comprehensive guidance on when and how to appry the provisions of Section 4(t)
on FH WA projects that propose to use 4(f) land or rescurces. The infonnatbn presented in this paper is
not regulatory, but is the official policy of FHWA on the applicability of Sedbn 4(f) to various types of land
and resources and other Section 4(f) related issues. The paper creates no private right of action and its
guidance Is not judidally binding on the FHWA
Previous versions of this policy paper are no bogey applicable. This issuance also rescinds the
November 15, 1969, Memorandum: Altemetives Selection Process (or Projects Invohdng Section 4(f) of
the DOTAd, aignetl by All Sevin, Director of the Office of Environmental Poicy, and by the creation of
Question and Answer 24, supersedes the August 22, 1994, Interim Guidance on Applying Sedron 4(t) On
Transppratron Enhancement Projects and Natbnal Recreation Trails.
Purpose of this Paper
ThLs paper e~lains how Section 4(f) applies generally and to specific situations where resources meeting
the Sadion 4(f) criteda maybe Involved. It is based on court dedsions, e~erience and on policies
developed by FHWA and USDOT over the years. This paper serves as a guide for the applicability of
Section 4(f) for mmmon proJed situations often encountered by FHWA DNislon Offices, State
Departments of Transportafon and other paRners.
For spedfic projects that do not wmpletety fit the situations or parameters desaibad in this paper, it La
advisable to contact the FHWA Division Office. In tum, the DNision Office may contact the Washington
Headquarters' Office of Project Development and Environmental Review, the Resource Center
Environmental Technical Service Team, and/or the Office of the Chief Counsel. For more Information on
Section 4(f) refer to the Environmental Guidebook (www.environmentMwa.doLCOVfquidebookrndex.htrnl
and the FHWA Re: NEPA Community of Predice (hap://neoa.fhvs.dot.oovl.
important Points
At the outsek a few important points about Section 4(f) must be understood.
• Section 4(f) Authority and Responslbillty: Section 4(f) applies onty to the actions of agendes
within the USDOT. While other agendes may have an interest In Section 4(f), the agendes
within the USDOT are responsStle for applicability determinations, evaluatlons, findings and
overell compliance:
• Section 4(f) Applicability: Section 4(f) applies to any significent publidy owned public park
recreation area, or wildlife and waterfowl refuge and any land from an his[odc site of natonal,
state or local significance.
Public Ownership and Public Access Criterfa: Section 4(f) applies to signficant publidy
owned public parks antl recreafpnal areas that are open to the public, and to significant publidy
owned wildlife and waterfowl refuges, irrespective of whether these areas are open to Mepubllc
or not, since the °major purpose° of a refuge may make it necessary tOr the resource manager to
limit public access. When private insflluaons, organ¢atlons or individuals own parks, reaeational
areas or wildlife and waterfowl refuges, Section 4(f) does not apply to these properties, every if
such areas are open to ale public. If a governmental body has a permanent proprietary interest In
the land (such as fee ownership or easement), k is considered "publidy owned' and thus, Section
4(f) may be applicable. Section 4(f) also applies to all historic stes of national, state or ktcal
signfignce, whether or not these sites are publidy owned or open re the public Except in
unusual circumstances, only historic properties on or eligble for indusion on the National
Register of Historic Places are protected under Secon 4(f).
• Significance Criteria: A publidy owned park, recreation area or wildlife and vraterfowl refuge
must be a "signifipnt° resource for Section 4(t) to apply. Pursuant to 23 C.F.R. 771.135 (c), 4(f)
resources are presumed to be s(gnificant unless the official having jurisdiction over the site
condudes that the entire site is not significant Even a this is done, FHWA must make an
independent evaluation to assure that the officiaPs finding of significance or non-signfficance is
reasonable.
Feasible and Prudent Crttaria: Numerous legal decisions on Section 4(f) have resulted in a
USDOT policy that fmdings of °no feasibe and prudent altemaWes' and "all possible planning to
minimize harm°, must be well documented and supported. A feasible alternative is an altemaave
that is possible to engineer, design and bold. The leading United States Supreme Court case,
commonly known as Overton Park, (Citizens to Preserve Overton Park v. Volpe 407 U.S. 402
(1971)), held that to find that an altematNe (that avoids a 4(f) resource) is not °prudent° one must
find that Mere are unique problems or unusual factors irrvdved with the use of such altemafives.
This means Mat the cast, social, economic and environmental impacts, and/or mmmunity
disruptan resulting from such altemaWes reads extraordinary magnitudes. One can use a
lofality of Mese circumstances to establish Mat Mesa unique problems, unusual factors or other
impacts reach extraordinary magnitudes. FHWA has incorporated this decision into existing
regulations found at 23 C.F.R. 771.135(a)(2).
• Documentation and Coordination: The statute does not require the preparetbn, distribution or
dreulation of any written document The statute also does not conhain a public comment element.
OMer than Me U.S. Departments of the Interior, Housing and Urban Development and
Agdatture, the statute also does not require or establish any procedures for coordinatlng vriM
eitherother agendes or the public. USDOT has developetl departmental requirements for
documenting Sedion 4(t) decisions. For example, the requirements of DOT Order 561 g.1C and
ifs predecessors have been incorporated into FHWA regulatlons. FHWA developed procedures
for the preparation, circulatan and coordination of Becton 4(f) documents in two places; 23 Code
of Federal Regulations (C.F.R.) Section 771.135, and FHWA's TechnlcalAdvisory, Guidance for
Preparing and Processing of Environmental and Sedion 4(n DocumeMS T 6ti40.8A. Both of
these sources of information are available at the FHWA NEPA Project Development Website:
www.environmeni.fhwa.dotcov/oroidev/index htm.
Two purposes of a written Section 4(f) evaluation are to establish an adminisrative record and to
ensure that FHWA has fcllowed the regulatory and statutory requiremems. The administrative
record is the agences written record that memorializes the basis for deterninirg that there tr no
feasible and pnxtent akemative to the use of the 4(Q resource and demonstrates that Fl-IWA
used all possible planning aM measures to m(nknize harm. Likewise, when circulated with the
NEPA document, it permits FHWA to obtain comments on avoidance akematives and measures
to minim¢e harm.
If a Sedion 4(f) evaluation is legally challenged, k Is reviewed In atxordance with the
Administrative Procedure Ad (APA) that provklesjudidal deference to USDOT actions. Under
the APA, the agences action must be upheld unless it is arbitrary, capricious, an abuse of
disaetan or otherwise not in accordance wkh law (5 U.S.C. 706 (2)(A)). The court will review the
administat(ve record to determine whether FHWA complied with the elements of Beckon 4(ft. If
an inadequate administrative record is prepared, the court will lack the required Beckon 4(f)
elements to review and, therefore, will be unable to tlefer to it (this is even truer If rro Sedion 4(f)
Evaluation is prepared). While agency dedsions are entitled to a presumption of regularity and
courts are not empowered to substitute thelrjudgment for that of the agency, courts will carefully
review whether the agency folbwed the appligble requirements.
Therefore, the administrative record should contain the following essential Information:
1) The applipbility croon-applicability of Section 4(f) to a property used by a project;
2) The coordination efforts with the offidals having jurisdiction over or administering the land
(relative to signlfinnce of the land, pdmary use of the land, mitigation measures, etc.);
3) The location and design alternatives that would avoid the use allogefher or minim¢e the
use and harm to the 4(f) land;
4) Analysis of impacts of avoidance and Sedion 4(f) use altema[ives; and
5) All measures to minim¢e harm, surh as design variations, landsppir>g and other
mkigatbn.
Ttre Section 4(f) analysis process is diagramed fn Appendix B.
• Other Laws and Requirements: There are often concurrent requirements of other Federal
agencies when 4(f) lands are involved In highway projeds.t It should be noted that Sedion 4(t)
has requirements that are iMependent from obligations found in these other authorlkes. In the
instance where more than one Federal law is applicable to the 4(f) resource, just because the
requirements of one law have been complied with, does not necessarity mean that Beckon 4(f) Is
also satisfied. FHWA must demonstrate compliance with all the different requirements of
applipble law in addition to its Section 4(f) responsbllity.
' Examples include: CompahLihtydeterninadonstor [he rise oflards in the Natiorml Wildlfe Redrge System and the National
Park System, oontialency decermirretions for the use of public (ands managed by the Bureau of fend Management, deterv
minadons ofdirec[ and adverse effects for Wild and Scadc Rivers undo the jurisdiction ofsuch agencies az the U.S Fish and
Wildlife Service, National Park Service, Bureau of land Mamgement, and Forest Service, and approval of land conversions
covered by the Fedemi-aid in Fish Restoration and die Fedmal-Aid in Wildgte Restoration Acts (the IHngell-]ohrton end
Pitmtan-Robemson AUS), the Recreational I)emonstratloo Projects arul the Federal Property ant AdminLwadve Service (Surplus
Roperty) Acts, and Sedion 6(t) ofthe tend and Water Canservatian Pond Act
Project mitigator required by other substantive laws can help FHWA safisfy the requirement that
a project inGUde all possible planning to minimze harm to a 4(f) resource if it is used. A good
example of tllls is the terms of the Memorandum of Agreement (MOA) with the State Historic
Preservation Officer (SHPO) or Tdbal Historic Preservation Officer (THPO) when an historic
property Is adversety affected (under Section 106 of Me National Historic Preservation Act) by a
FHWA project Neverth~ess, if more reasonable measures o minimize harm to the 4{f) resource
can be taken, simply complying with another staW[es mitigation measures is not enough.
W hen a project proposes to use resources protected by Sectbn 4(f), a Section 4(f) evaluation must be
prepared. The following information provides guidance on the key areas of a Sectlon 4(f) evaluation.
Section 4(f) Evaluation Format and Approval
The Sector 4(f) evaluation may ba developed and processed as a stand-abne document, as in the case
of a categoricel exdusbn (CE) determinalbn, or incorporated into an environmental assessment (FA) or
environmental impact statement (EIS) as a separate section of those documents. The format antl content
for these evaluation dorxlments are addressed In Cla FHWA Technics! Advisory T 6640.8a, Guidance for
Preparing and Processfng of Environmental and Section 4(f) Documents, October 30, 1987
(www.erwironment fhwa dot oovNroidevfimoTA8840 htm).
The FHWA Division Office or the Federal Lands Highway Division approves all Section 4(f) evaluations.
Prior to Division Oficeapproval, all final Ser~on 4(f) evaluations must undergo legal suffidency review fn
arxorlance witll 23 C.F.R. 771.135(k). It is advisable and strongly recommended that the Division Office
provide copies of the administrative a pre-0raft Section 4(f) evaluator fc the appropriate legal staff for
preliminary review instead of submitting onty the pre-final evalualon for legal sugidency review.
Alternatives Analysis
The intent of the Section 4(f) statute and the policy of the USDOT is o avoid the use of sign'fiicant public
parks, recreation areas, wildlife and waterfowl refuges and historic sites as part of a project, unless there
is no feasible and prudent alternative m the use of such Iand.2 In order o demonstrate that there is no
feasible and prudent attemative o the use of 4(f) land; the evaluation must address both location
altemaWes and design shifts that totally avoid the 4(f) land. As noted before, supporting information
must demonstrate that there are unique problems or unusual factors Involved with the altemaWes that
avoid the use of 4(f) land, such as findings that these allematlves result in costs, environmental RrlpacLs
or community disruption of extraordinary magnitudes. Likewise, desgn shifts thatt~nnot totaly avoid use
but that minanize the impact, must also be empbyed unless they are not feasible and prudent
The Section 4(f) evaluation must address the purpose and need of the project. The need must be
sufflGently explained and be consistent with the need set forth in any concurrent National Environmental
Policy Ad (NEPA) documentation. The Section 4(f) evaluation may reference the purpose and need
inducted in a NEPA dtxumenk without reiteration, when the evaluator is Inducted as a chapter of the
document Any alternative that b determined o rat meet the need of the project, including the no-bulld
alternative, Is not a feasible and prudent altematlvea. The evaluation must Include this analysis.
' "Sigmftcence" ofone ofMese types ofpmperties is presorted unless m oBrial vrithjudsdiction detamirrcsthat the entire site
is tint sigrdfieant
3 At to for t hri t 131 Fad 1285, 1288 (9tlt Cir. 1987); Arizmn Pest and Future Foundation v.
Le 722 F2d 1423, 1428 (9th Cv. 1983); HickorvNriahlwfiood DeCetae Ieaeue v Skimtec 910 A2d 159, 163 (4th Cir.
1990); Beale Foundation. Inc v Dole 813 F.2d 798, 804 (7th dr. 1987); Cmnmittee to Preserve Boomer I~4e Park v. U~ T.
4 Fad 1543,1550 (10th Ch. 1993); Dmid Hills v. FHWA, 772 F.2d 700 (l l CSr. 1985); $iaeved v. Dole. 828 F.2d 1300,
1104 (8th Cir. 1987).
It is importam to point out that the standard far evaluating altematives under NEPA and the standard for
evaluating alternatives under Sedlon 4(f) are different In general, under NEPA, FHWA pn advance to
detailed study any reasonable altematlve, among a range of alternatives, as long as there Is sufficient
information that shows await-reasoned decision to indude that altemafive. However, under Section 4(f),
if there is a feasible and prudent altemativa Mat avoids the use of a A(Q resource, among alternatves that
use a 4(f) resource, Me altematve that must be selected is Me one Mat avoids Me 4(f) resource.
Likewise, Me test under NEPA, to eliminate a reasonable alternative is based on a number of
independent factors or a totality of amulatlve factors- However, simply because under NEPA an
alternative (Mat meets Me purpose and need) is determined to be unreasonable, does not by definition,
mean it is imprudent under the higher substantive test of Section 4(f). Therefore, it is possible for an
alternative Mat was examined but dismissed'during Me preliminary NEPA alternative screening process
fo still be a feasible and prudent avoidance alternative under Section 4(f). In other words, Mere is more
room to reject alternatives as unreasonable under NEPA than Mere is to find Mose same alternatives are
imprudent under Section 4(f).
Feasible and Prudent Standard
The first test under Section 4(f) is to determine which alternatives are feasible and pmdent. An
alternative is feasible if h is technically possible to design and build that alternative. The second part of
Me standard Involves determining whether an alternative is pmdem or not, which is more tlitficult to
define.
An alternative may be rejectetl as not prudent for any of the fdlowing reasons:
t) It does not meet the project purpose and need,
2) It involves extraordinary operational w safety problems,
3) There are unique problems or truly unusual factors present vriM d,
4) It results in unacceptable and severe adverse social, economic or other environmental impacts,
5) Itwould cause extraordinary community disruption,
6) It has additional construction costs of an extraordinary magnitude, or
7) There's an accumulation of factors Mat collectively, rather than individually, have adverse
impacts Mat present unique problems or reach extraordinary magnitudes.
Where sufficient anatysis demonstrates Mat a particular altematlve b not feasible antl prudent, Me
analysis or consideration of that akemative as a viable alternative comes to an end. If all alternatives use
land from 4(f) resources, then an anaysis must be pertormed to determine which alternative results in Me
least overall harm to the 4(f) resources. If the net harm to 4(f) resources in all Me altematlves is equal,
Men FHWA may select any one of them. In other words, If Me project proposes to use similar amounts of
similar 4(f) resources, Mere is no altematlve that would pose Me least overall harts. In eiMer situatwn, k
is essential that the agency having jurisdiction over Me 4(f) resource be consulted.
It should be noted Mat Me net harm analysis is governed by all Me possible mitigation Mat ceuk be done
k minim¢e harm to Ma 4(Q resource. The sat harts should be determined In consukation wiM Me
agency having jurisdiction over Me resource or, In the pse of historic sites, Me State Historic
Preservation Officer (SHPO) or Trbal Historic Preservation Officer (THPO), as appropriate. By inducting
mitigatkn, impacts on Me 4(f) properly cook be reduced or eliminated. The altematlve that results in the
least net harm must be selected.
Not all uses of 4(f) resources have the same magnitude of impact antl not all 4(f) resources have Me
same quality. A qualitative evaluation is required. For example, evaluation of the net Impact should
consider vfieMer the use of Me 4(t) properly involves:
1) A large taking or a small taking in relation to the overall size of the resource, or
2) Shaving an edge of a property as opposed to cutting Mrough its middle, or
3) Altering part of Me land surrounding an historic budding rather Man removing Me building itself, or
4) Examinirg Me key features of the 4(f) resource, or
5) An unused portion of a park rather than a highly used porl'an
When different alternatives propose to use different 4(f) resources, the importance of the resources must
be considered. For example, three marginal acres of a large park may be less important than one acre of
a smaller city park. To provide support for these complex evaluatbns, the officals with jurisdition over
the 4(f) resources shoultl be consulted antl their opinions memorialized in the administrative record.
As Congress gave 4(f) resources paramount Importance, care should be taken to apply consistent
standards throughout the length of any given project. For example, it would be inconsistent to accept a
restricted roadway cross section in order to reduce the project costs or to gain a minimal safety benefit,
when at other loptlons on the same project this restricted roadway cross section a rejected as
unacceptable in order to avoid a pads This same cencept should be applied between projects as well.
Examples of Ne Alternative Selection Process
One of the most difficult areas of analysis fs the evaluation of alternatives, and their impacts on both 4(f)
and non-a(f) resources, and then deciding whits alternative to salad. Issues such as, what role does
mitigation play in selecting alternatives, what to do d there are mutliple 4(f) properties usetl and how other
important resources in the project vicinity should Ge considered, make this area of analyse complex. It e
essential to document the reasoning for dismissing an alternative as well as the reasoning for selecting
an alternative. This documenfatbn will become a key part of the administrative record. To address some
of these sc~arios, consider the following three project examples. Also, refer to the summary table on
Page 7, following this tlispssbn.
On project 1, Alternatives C and D are determined not to be feasible and prudent. While these
alternatives may or may not use land from a 4(t) resource, k is immaterial since they simply pnnot 6e
built. Thus, no further analysis of C or D e waranted. Since Alternatives A and B are feasible and
prudent and because B does not use land from a 4(f) resource, Alternative B must be selected. It is not
necessary to determine the relative harm that Alternative A has on the 4(f) resources, baptise B e a
feasible and prudent avoidance alternative.
On project 2, Alternatives C and D are determined not to be feasible and prudent. No further
censideratxm need be given these altemaWes. Of the remaining feasible and prudent alternatives, both
Alternatives A and B use land from 4(f) resources. FHWA pn approve only the feasible and pmdent
altemalive that has the least overall harm to the 4(f) resource. Hare, 8 must be selectetl since the harm
to 4(f) resources a the least. When there are multiple alternatives that use a 4(f) resource, it slxwld be
noted that simply bepu58 an alternative uses rtwre acreage, that might not be the greatest Section 4(f)
use. In contusion, to determine which alternative has the least harm, one siquld evaluate the
importance of the 4(f) resource, Me potential far mkigation and confer with the otfical(s) with Jurisdiction
over the 4(f) resource.
On proJed 3, all the build alternatives use 4(f) resources, such that there are no feasible and prudent
alternatives Mat avoid the 4(f) resources. As all four alternatives use 4(f) land, one needs to evaluate the
impacts both to 4(f) and non-a(f) resources to select Me prudent and least overall harm alternative.
Among Me 4 altemath~es, A and B have almost equal Sectlon 4(f) net impacts but more impacts Man
Ahamatives C and D, so neither A nor B pn be selected. However, between Ahematives C and D, C has
more Sectlon 4(f) impacts Man D. Therefore, usually one must chose Alternative D as illustrated In the
example in proJed 2 above. There are times; however, Mat there will be additlonal important non•Section
4(f) environmental impacts that must go into the equation of what is Ma prudent alternative. If Alternative
C has slightty higher Section 4(f) impacts Man Alternative D, but Mere are additional important
environmental impacts associated with Alternative D (Mat Alternative C does not have), it may be mare
prudent to choose Alternative C. Examples of non-a(f) resources could be an endangered species or
cdtipl habitat being taken, CERCLA or superfurrd site problems, the elimination of valuable wetlands,
and/or major envionmertal justice issues. In th(s instance, Ma pmdent decision is Me one Mat puses
the overall least harts to all environmental resources, both 4(f) and non-a(f) resources. Section 4(f) plays
a signifipnt role inthe ctecision-making process but in total, Me prutlent choice here Is not the alternative
that uses the least amount of 4(f) property. Therefore, Alternative C would be advanced. The courts
have accepted this totality of impacts anatysis°.
Measures to Minimize Harm and MNigatlon
In addition to determining that there are no feasible and pmdent altemativPS W avoid the use of 4(f)
resources, the project approval process requires the consideration of "all possble planning to minimize
harm° on the 4(f) resource. Minimizaf~n of harm eMatls both alternative design modifiplions that lessen
the impact on 4(f) resources and mitigation measures that compensate for residual impacts. Minimization
and mitigation measures should be detenn6ted through consultation with the official of the agency owning
or atlministering the resource. Neither the Section 4(f) shatute nor regulation requires the replacement of
4(f) resources used for highway projetxs, but this option is appropriate under 23 C.F.R. 710.508 as a
mitigation measure for direct project impacts.
Mitgaton measures involving public parks, rerxeation areas, or wildlife and watertowl refuges may
involve a replacement of land and/or facilities of comparable value and function, or monetary
compensation, which could be used to enhance the remaining land. Mitigation of historic skes usually
consists of those measures necessary to preserve the historic integrity of the site and agreed to in
accordance with 36 C.F.R. Part 800, by FHWA, the State Historic Preservation Officer (SHPO) or the
Tribal Historic Preservation Officer (THPO), and as appropriate, the Advisory Council on Historic
' Hickory Nei¢hbmhood Deftnse League v Skinner. 910 F.2d 159, 163 (4th Cir. 1990} Fiala Foundation hrc. v. Ible. 813 F2d
798, 805 (7th Cv. 1987); Louisiana Em. Society. Inc v. Dole. 707 F.2d 116,122 (5th Cir. 1983); Comminee to Preserve Haomer
Lake Park v. USr10T. 4 F.3d 1543, 1550 (10th Cir. 1993).
' In project 1, there is a Ceasibk and pnrdem alternative, which does not use Section 4(t) protected property (Alt. B). Any
altemadve which uses Section 4(t) pmtected property must be eI®inated from furdrer cansideretion
° Since this altemadve is not ftas,'ble end prudent, it should be eli~naled from Curtlrv consideration. WheMer Section 4(t)
land is used end the rehdve harm [o Section 4(i) pro[eMedprnpertis ere no longer retevmt factors.
`Sintt all alternatives use 4 (t) resources, a pndem and feasibk avoidance alternatives analysis is rwt required.
Preservation (ACHP). In any case, the cost of mitigation should be a reasonable public expenditure in
light of the severity of the impact on the 4(f) resource in accordance with 23 C.F.R. 771.105(d). Sefton
6(f) of Me Land antl Water Conservation Furtd Ad has its own mitigation requirements, but as noted
before, these can be part of the 4(f) minimization requirement if the resource cannot be avoided°.
Coordination
Preliminary coordination prior to the circulation of the draft Section 4(f) evaluation should be
accomplished with the official(s) of the agency owning or administering the resource, the Department of
Interior (DOI) and, as appropriate, the Departments of AgridtlWre (USDA) and Housing and Urban
Development (HUD). The preliminary coordinaton with DOI and HUD should be either at the appropriate
field office or at the regional level. The preliminary txmrdlnation with USDA should ba with the
appropriate National Forest Supervisor. There should be coordination witit USDA whenever a project
uses land from the National Forest System. Since the Housing and Urban Rural Recovery Ad of 1963
repealed the use restridfons for the Neighbomood Facilities Program author¢etl by Title Vll of the HUD
Ad of 1965 and the Open Space Program authorized by Title VII of the Housing Act of 1961, the number
of instances where coordinaton with HUD should be accomplished has been substantfalty reduced.
Coordination with HUD should occur whenever a project uses a 4(f) resource where HUD funding (other
than the above) had been uNized.
If any issues are raised by these agendas resulting from the dreulation of the draft Section 4(f)
evaluation, folbw up coordination must be undertaken to resolve the issues. In most cases the agences
response will indipte a contact point for the tollow up cocrdination. However, case law indicetes that'tf
reasonable efforts to resolve the issues are not successful (one of these agencies is not satisfied with the
way its concerns were addressed) and the issues ware disdosed and received good•faith atlention from
the decision maker, FHWA has met the procedural obligation under Section 4(f) to consult with and obtain
the agen~ys comments. Section 4(f) does not require more.
Programmatic Section 4(f) Evaluations
As an alternative to preparing an individual Section 4(f) evaluation, FHWA may, in certain drtaensfances
utllire a programmatic evaluation. Under a programmatic Section 4(f) evaluation, certain condNons are
laid out such that, if a project meets the cenditans it will satisfy the requirements of Section 4(f) that there
is no feasible and prudent alternative and that the project indudes all possible planning to minimize harm.
These conditions generally relate to the type of project, the severity of impacts to 4(f) property, the
evaluation of attematives, the establishment of a procedure for minimizing harm to the 4(f) resource,
adequate coordination with appropriate entities and the NEPA dass of action. Progremmatk Section 4(f)
shatements have certain elements in cemmon; (1) they irnolve projects with typlcat and limited range of
alfernatlves; and (2) the official having jurisdiction over the land agrees with the use evaluaton and the
proposed mftgation. Programmatic evaluations can bB nationwide, region-wide, or statewide. The
development of statewide or regional progremmatlc evaluations must be coordinated with the O(fice of
Project Development and Environmenthl Review and the Olfice of Chief Counsel
ThtRB are wrrently four approved Nationwide Programmatic Section 4(f) Evaluations. These evaluations
are found at the links provided below to the FHWA Em'vonmenfal Guidebook and itte Project
Development Website:
' State and looil governments often obtain grants though the LtM end Water Conservation Fwd Au to acquire or make
improvanwts [o parks and recreation areas. SeMiw fi(t) of this Aa proWbiis the wnvttsiw ofpropem~ acquired oe developed
with dsese gmnn to a non-recteadorial purpose without the approval ofthe Depottrnent of tlta Interiofc (DOn Natiorel Park
Service. Sectiw ~Fl deeds DOI m assure that replacement Inds of equal value, locedw and usefulrcess are provided as
cwdilionsro such canversiore. Cortuqumtly, wham cwversions ofSediw G(t)hrcLe are proposed for highwaYProJad.
replacwent hods will be necessary. Regardless of the adtigauw proposed,the Secdw C(t) evaluation should document the
National Perk Smice's twlative position relative b Section 6(Q canversiw.
1) Programmatic Section 4fFl Evaluation and Approval for FHWA Protects tltat Necessitate the Use
of Historic Bridoes. This evaluation sets forth the basis for approval that there are no feasible and
prudent attematives to the use of Certain historic bridge sWdures Po be replaced or rehabilihated
with Federal funds and that ttre projects indude all possible planning to minimize harm resulting
from such use.
(www environment fhwa dot oov/auidebookNol2/docl5i odi and
www.environment.shwa.dot.covloroidev/4fbddae.htm)
2)Final Nationwide Section 4ffl Evaluation and ~Aooroval for FederallwAided Hahwav Protects with
Mirror lnvoNements with Public Parks ReaeatforcLands and WgdlifearkiWaterfowlRefuees.
This programmatic evaluation is applicable for projects that improve existing highways and use
minor amounts of publidy owned public parks, recreation lands, or wildlife and watertowl refuges
that are adjacent to existing highways.
(www environment fhwa dot aov/ouidebook/vo121doc15C odf and
www environment fhwa dot gov/oroidev/4fmoarks hMl
3) Final Nationwde Section 41fl Evaluation and ACluoval for Federally-Aided Hichwav Protects with
Minor Involvements whh Historic Sites. This programmatic evaluation has been prepared for
projects that improve existing highways and use minor amounts of land (Inducting non-historic
improvemems thereon) from historic sites that are adjacent to existing highways where the effect
is determined not to be adverse.
(www.envlronmentfhwa.dotaov/ouidebodk/vol2/docl5e.odf and
www.envlronment.ihwa dot aovforoidev/4fmhist hlml
4) Sedfon 4(fl Statement and Determinatan for Independent Bikeway ar Walkway ConsWction
Pro' .This 1977 negative dedaration applies to bikeway andlor walkway projects chat require
the use of land from Sedan 4(f) resources.
(www.environmentfhwa dotaov/ouidebook/vo12/doc95m odf and
www environment mwa dot aov/oroidev/4Poikewavs htm)
The fad that these programmatic Section 4(f) evaluations are approved does not mean that these types
of projects are exempt finrn or automatically comply with the requirements of Section 4(f). Sedfon 4(f)
does, In fact, appty Po each of the types of projects addressed by these programmatc evaluations.
Furthermore, ihegrogremmaticSedbn 4(f)~doas nobrelax the Seclign:4(f) standards.of feasible and
for teviewfng eachindivklualprojedto determine that it meets the criteria and procedures of the specific
programmatic Section 4(f) evaluation. The FHWA Division Administrator's or Division Engineer's
determinatlons vnfl t>e thorough and will Beady document the items that have been reviewed. The written
analysis and determinations will be combned in a single Oocument,placed in the prajed record and will
be made available to the public upon request This programmatic evaluation will not change the existirg
procedures for protect compliance with fhe National Environmental Policy Ad (NEPA) or with public
invdvement requirements.
Programmatic Section 4(f) evaluations streamline the documentation and approval process and amount
of inteagency coordination that is required for an individual Section 4(f) evaluation. Draft and final
evaluations do not need to 6e prepared and FHWA legal sufficiency review is not required. Interagency
coord'atadon Is required only with the official(s) with Jurisdiction and not with DOI, USDA, or HUD (unless
the Federal agency has a spedfic action to take, such as DOI approval of a conversion of land acquired
using Land and Water Conservation Funds).
~ ............................. ..... f:ormauxYl
I
Section 4(Fl Aoolicabriity
The following questans and answers provide guidance on the applicability of Section 4(f) to various types
of land, resources and project situations. The examples represent FHWA's pol(cy on the SllUatldrls most
often encountered in the project devebpment process. Far advice on spedfic sttuatbns or Issues not
covered in this paper, the FHWA Division Office should be consulted, and'rf necessary the Division Office
can contact Ne Washington Headquarters Office of Project Development and Environmental Review
and/or the Office of the Chief Counsel. An analysis of Sedion 4(f) case law as U relates to many of the
following situations and examples Is inducted in Appendix 0. for your information.
1. Use of Resources
Question A What constitutes a "use" of land from a publidy owned public park, public recreation area,
wildlUe refuge and waterfowl refuge or historic site?
Answer A: Section 4(f) "use" is defined and addressed in the FHWAIFfA Regulations at 23 C.F.R.
771.135(p). A "use" occurs when:
1) Land from a 4(f) site is oermanenUv incorporated into a transportation fadltry,
2) There is a temoorarv occupancy of land that is adverse m terms of the Secfbn 4(f) statute's
preservationist purposes (23 C.F.R. 771.135(p)(~), or
3) When there is a consWctive 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 a5 rightof-way or suffident property intares~ have been otherwise acquired far the purpose of
project implementation. For example, a °permanent easement which is required for the purpose of
project consWdion or that grants a future right of access onto 4(f) properly, such as for the purpose of
routine maintenance by the transportation agency, would t>e consideretl a permanent Incorporation of
land into a transportation facility.
Project activities kwoiving the restoration, rehabilitation or maintenance of highways, bridges or other
eligible transportation fadlitles (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 Sedion 106 of the National Historic Preservation Ad) the historic qualitles of the fadllry for which k
was determined eligble 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).
luestion B: How is "constructive use" defined and determined?
Answer B: 23 C.F.R. 771.135(p) defines what a otxrsWdive use is. FHWA has IderrUfiad certain project
situations where a consWdive use will occor and when a consWctive use will not occur (sea 23 C.F.R
771.135(p)(4) and (5)). Constructive use is only possible in the absence d permanent incorporatbn or
temporary occupancy of the type that constitutes a use of 4(f) land by a transportation project
Constructive use onry occurs in those situations when:, inducting mitigation, the proximity impacts of a
project on the 4(~ property are so severe That the activities, features or attrbutes that qualify the property
or resource for protection under Sedion 4(f) are sututantialty impaired. Substantlel Impairment occurs
when the activities, feaWres or attributes of the 4(t) properly are substantiapy dimUrished (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
meaningfulty reduced or bst The degree of impact and impairment should be determined in consultation
wiUr the oTficials having Judsdiction over the resource.
An examp~ 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 Ure use and enjoyment of the noise-
sensitive resource, and the conditions set forth in 23 C.F.R. 771.135(p) are saUSfietl. For additional
IMOrmation on noise, please refer to FH WA noise regulations at 23 C.F.R. 772.
10
Constructive use determinations will 6e reres. The impacts outlined in 23 C.F.R. 771.135(p)(4), involWng
projects adjacent to or in the proximity of 4(f) resources should be carefully examined. If k is determined
that the proximity impacts do not puss a substantial impairment, FHWA pn reasonabty conclude tltat
there is no consWdive use. FHWA has determined that certain impacts constitute a constructive use
aM tltat others do not (sea 23 C.F.R. 771.135(p)(4) and (5)). Environmental documents should of cotlree
corttaln the analysis of any potential proximity effects and consider whether or not there is substantial
imparment to a 4(f) resourp. Except for responding to review comments in environmental documents,
which specifiplly address constructive use, the term "constructive use" need not be used. Where a
consWctlve use determatatbn is likely, the FHWA Division Office must consult with the Headquarters
Office of Project Development and Environmental Review during development of the preliminarydreft
Section 4(f) evaluatlon.
Questlon 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 ocotlpancy, inducting those resulting
from a right-0t~ntry, construction, other temporary easements orshort-term arangements, of a
signifipnt publicly owned public park, recreation area or wildlife and waterfowl refuge, or any signifipnt
histodc stle where temporary occupancy of the land is so minimal that a does rat constitirte a use within
the meaning of Section 4(Q.
A temporary occupancy vrill 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:
(1) Duration (of the occupancy) must be temporary, i.e., less than the time needed for conshuction of
the project, and there shaukl be no dtange in ownership of fhe land;
(2) Scope of the work must be minor, i.e., both the nature antl the magnitude of the dtanges to the
4(f) resource are minimal;
(3) There are no antidpated permanent adverse physipl impacts, nor will there be inferference with
the adivitles or purpose of the resource, on either a temporary or permanent bash;
(4) The land being used mustba fully restored, i.e., me resource must be rettlmed to a conditlon
which is at least as good as that which existed prior to the project; and
(5) There must be documented agreement of the appropriate Federal, State, or lopl officials having
judstliction over the resource regarding the above conditions.
In the slWation 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.
2. Public Parks, Public Recreation Areas and Wildlife and Watertowl Refuges
Questlon A: When is publicly owned land considered to be a park, recreaton area or wildlife and
waterfowl refuge and who makes this determination?
Answer A Publicly owned land a considered m be a park, recreation area or wikflife and waterfowl
refuge when the land has been tHfictally designated as such by a Federal, Sfate or Iopl agency and the
otfidals of these governmental entities, having jurisdiction over the land, determine that one of its meta
ourooses and functions is for park, recreation or as a refuge. Incidental, secondary, ocoasbnal a
dispersed park, recreatbnal or refuge activities do not constiWte a major purpose.
For the most part the "offidals havng jurisdiction" are the oifidals of the agency owning or administering
the land. There maybe Instances where the agency owning or administering the land has delegated or
relinquished its authority to another agency, vfa an agreement on haw sane of its land will function or be
managetl. FHWA will review this agreement and determine which agency has authorty on how the land
functions. If the authority has been delegated or relinquished b another agency, that agency must be
s The FHWA's constructive use policy was formalized in reguUdon on April 1, 1991, wim the addition ofparegaph (p) m 23
C.F.R.771.135. The November 12, 19&5, tnemormdum &am Mr. AN F. Sevin, Direcror ofthe Office of 13nviromnental Folicy
m the Regiorul Federal Highway Administrates is ao Imger applicable.
11
contacted to determine the major purpose(s) of the land. Management plans that address or offidalty
designates the major purpose(s) of the properly should be reviewetl 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 dedslon an its own examination of the actual functions that exist.
The final decision on applipbility of Section 4(f) to a partialar property or type of land is made by FHWA.
In reaching this dedsion, however, FHWA will rely on the offical having jurisdiction over the resource to
identify the kinds of activities and functions that take place, and that these activities consttute a major
purpose. Documentation of the detertninalbn of nonapplicabilitysbould be inducted In the ernironmental
document or project record.
Question B: How should the significance of public parks, recreation areas and wildlife and waterfowl
refuges be determined?
Answer B: 'Sign~cance" determinatons, on pubHdy owned land considered b be parks, recreation
areas or wildlife and watefowl refuges, pursuant to Answer 2 A above, are made by the Federal, Stale, or
logl officials having jurisdiction over the land. As discussed above, the'otficials havingjurisdicllort" are
offidals 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, signlfipnce determinations must
consider the entire property and not just the portbn 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 offidals having
jurisdiction. Significance means that in comparing the avallabtily and function of the park, recreational
area or wildlife and waterfowl refuge, with the park recreatbn or refuge objectives of the community or
authority, the resource in question plays an important roie in meeting those objectives. Management
plans or other offical forms of documentation regarding the land, 'd available and up•to-date, are important
in this determination. If a determination from the offidal withjurisdiction cannot be obtained, and a
management plan is not avalable ar dces not address sign~pnce of the 4(f) land, it will be presumed to
be signifcant untH FHWA reviews the determnaton and reaches a different conclusion. All
determinations, whether stated or presumed, are subject to review by FHWA for reasonableness.
Question C: Are publicly owned parks and recreatiot areas, which are significant but rwt 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'rf the entire public park or public recreatbn area
permits visitation by the geneal public at arty time during the normal operatlng hours of the tadlity.
Section 4(t) would not apply when vislfatlon is permitted ro only a select group and rat the Mire public.
Examples of select groups include residents of a public Causing project: military and their dependents
(see also Question 11 B); students of a sdrool; and students, faculty, artd alumni of a college a
university. FHWA does, however, strongly encourage the preservation of such parks and recreation
areas; even though they may rwt be open th the general public.
It should be notetl that wildl'de and waterfowl refuges have not been included in this discussion. The
statute uses the modifying term public to perks and recreaton areas and, therefore, the "open to the
public" requirement only applies to park and recreational area lands. Many wIIdIHe and watertovA refuges
allow public access, while others may not, espedally during certain times or seasons of the year. In these
rases, the publicly owned resource should be examined by the FHWA Division Office th determine that
the primary purpose of the property and resource is for wildl'rfe or watefowl refuge and not for other non-
Section 4(f) activities (see also Question 20).
Question D: When does an easement ar lease agreement with a governmental body constWte'public
ownership"?
Answer D: Case law holds that land subject to a publk easement in perpetuity can be considered
publicly owned land for the purpose the easement exists. Under spatial circumstances, lease
agreements may also constitute a permanent and proprietary interest in the land. Sudt lease agreements
t2
must be determined on a pse-by-case basis antl such factors as the term of the lease, the understanding
of the parties to the lease, pnceliation clauses and the like should be considered. Any questions on
whether or not the leasehold or omer interest constitutes public ownership should be referred to the
Federal Highway Administratbn Division Office, and If necessary the FHWA Division Office should
consul[ with the Washington Headquarters Othce of Project Development and Ernironmenfal Review and
the Omce of the Chief Counsel.
3. His[odc Sites
Question A How is the signifipnp (for Section 4(f) purposes) of historic sites determined?
Answer A: Pursuant to the National Histodc Preservation Ad (NHPA), the FHWA Federal Lands
Highway Division (tor FederaWands proJecLs) w FHWA Division in cooperation with the Applicent, i.e.
State Department of Transportation (for FederaFaid projects) consults with the Slate Historic Preservaton
Officer (SHPO) or Tribal Historic Preservation Officer (THPO) and if appropriate, with local dffidals to
determine whether a site is on or eligible for the National Register of Histodc Places. In cese of doubt or
disagreement between FHWA and the SHPO or THPO, a request for a determination of eligibility maybe
made th me 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 eligb0ity,
For purposes of Section 4(ff, an historic site Is significant only if it is on or eligible for the National
Register, unless FHWA determines that the appliptlon of Section 4(f) is otherwise appropriate. If an
histodc site Is determined not to be on w eligible for the National Register, but an oifidal (such as the
Mayor, President of me local historic society, eta) formally provides information to indicate that the
historic site is of local signfipnce, FHWA n~ determine that It is appropriate to apply Section 4(f) In that
rase. In me event mat Section 4(t) Is found inapplicable, the FHWA Division Office should doament the
basis for not applying Section 4(f). Such doatmentation might inGude the reasons wny the historic site
was not eligble for me National Register.
Question B: Dces Section 4(f) apply when mere Is an adverse effect determination under the regulations
implememing Section 106 of the National Historic Preservation AU (NHPA) (36 C.F.R. 800.5)?
Answer B: FHWA's determination of adverse effect under 38 C.F.R. 800.5
(www.acho.oovlwork106.html) does rwt mean that Section 4(f) automatiplly applies, nor should d be
presumed mat me lack of an adverse efkd finding (no histodc properties adversely affected) means mat
Section 4(f) will not apply. When a project permanently incorporates land of an historic site, wim or
wimout an adverse affeU, Section 4(f) applies. However, 'd a projeU does not physiplly take
(permanently incorporete) historic property but pules an adverse effect, one must assess the proximity
impacts of the projeU in terms of the potential fw'constructlve use" (see also Questiorr 1 B). This
anatysis must determine if the proximity impact(s) will substantialty unpair the features w attributes mat
contribute tome National Register eligibllfly of me historic site w district. If mere is no substantial
impairment, notwithstantling an adverse effeU determination, there is no constructive use and Section 4(f)
requirements do not apply. Sul>sfantial impainneM should be determined in consultation with the SHPO
and/or THPO and thoroughty documented In me project record. The determinaton of Secton 4(f)
applipbillty Is ultimately FHWA's decision.
As an example of a situation in which mere is a Section 106 adverse effect but no Section 4(f) use,
consider a transportation enhancement project where an abandoned National Register listetl bus station
will be rehabilitated. Rehabilitation for public use will require consistency with the American wim
Disablities Act (ADA). The incorporetion of ramps w an elevator will meet the definition of an adverse
effect, however, mere is no permanent incorporetbn of land Into a transportatbn fadliry and all panes
agree coal me rehabilitation will not substantially impair me property. Therefore, Section 4(f) would not
apply.
An example d a Section 4(f) use without a Section 106 adverse effeU involves a project on existing
alignment, whiUr proposes minor Improvements at an intersedron. To widen me roadway suff(dently, a
small amount of property from an adjacent Section 106 property will be acquired, but the signifipnce of
me Section 106 resource is such mat me SHPO conwrs in FHWA's determination of no adverse effect.
I3
However, the use of the property will permanently incorporate property of the histodc site into a
transportation fadliry and Section 4(f) will apply. This project situation may be evaluated using the
Naf/onwide Sed/on 4(~ Evaluation and Approval for Federelll~Aided Highway Projects with Minor
Involvements wr7h Historic Sites (www.environment thwa dot aov/cuidebcek/vd2ldoc15e.odfl, as long as
the doss of action is not an EIS.
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 histodc district are assumed to contribute, unless k is otherwise stated or they are
determined not to be. For tlrose properties That are not conlbutng elements of the district or individually
significant, the property and the disfdct 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 proposetl use of norMistortc property within an historic district whkit results in an adverse effect
under Section 106 of the NHPA will require further consideration to detemmkte whether or not there may
be a constructive use. If the use of aran-histodc properly ornon-contributing element substantially
impairs (see Question 2 S) the features or attributes that contribute to the NR eligibility of the historic
dishid, then Section 4(f) would apply. In the absence of an adverse effect determinatlon, Section 4(E1 will
not apply. Appropriate steps, inducting consultation with the SHPO andlor THPO, should be taken b
establish and document that the property's 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 histodc district. The logtions of the mast arms and control box are severety limited bepuse 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 hlstortc district. However, k may be reasonably
determined that no individually eligible property, oontrkrutlng element, or the historic district as a whde
will be subshantially impaired; therefore Section 4(f) wdl rwt apply.
Question D: How should the boundaries of a property eligible for listing on the National Register be
determined where a boundary has not been establlshedT
Answer D: In this situation, FHWA makes the determination of an histodc propertys boundary under the
.regulations implementing Sectbn 108 of the NHPA h consultation wifhthe SHPO andlor the THPO. The
identfication d historic properties and the detemtination of boundaries should be undertaken with the
.assistance of qualified professionals during the very beginning stages of the NEPA process. This
process requires the collectbn, evaluation and presentation of the information to doament FHWA's
determination of the property boundades. The determinallon of eligibility, whidt would indude boundaries
of the site, rests with FHWA, but if SHPO, THPO, or other party disagrees with this determination it can
"appeal" FHWA's determination to the Keeper of the National Register in atxbrdance wkh the prov'sions
of the Section 706 process.
Selection of boundaries is a judgment based on the nature of the propertys signifinnce, integdry, setting
and landscape features, functions and research value. Most boundary determinatlons will take into
account the modem legal boundaries, historic boundaries (identified in tax maps, deeds, or plats), natural
feaWros, akWral feaures and the distributlan of resources es determined by survey aMl testing for
subsurface resources. Legal property boundaries often coincide witlt the proposed or eligble historic site
boundaries, but not always and, therefore, should be indvidually reviewed for reasonableness. The type
of properly at'ssue, be it a historic building, structure, object, site Or district antl Its lopticn in either
urban, suburban or rural areas, will require the consideration of various and differing factors. These
factors are set ou[ in the National Park Service Bulletin Defining 8oundades for National Register
Properties. This Bulletin and other information can be found at the fdlowing website:
www.a.nos.oov/nr/oubl irationslbulletinslbamdaries.
14
Question E: How are National Historic Landmarks treated under Section 4(f)?
Answer E: Section 4(t) requirements related to the potential use of a National Historic Landmark (NHL)
designated by the Seaelary of Interior are essentialty the same as they are for any historic property
determined under the Section 106 process. Sedion 110(f) of the NHPA outlines the spedfic 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 hann'to the NHL affected by an undertaking. While
not expressly stated in the Section 4(f) statutory language or regulations, the Importance and sign~pnce
of the NHL should be considered in the FHWA's Section 4(f) analysis.
4. Histode Bridges, Highways and Other Transportation Facilities
Question A How does Sedion 4(f) apply to historic bridges and highwaysl
Answer A The Sedion 4(f) statute places restrictions on the use of land from historic sites for highway
improvements but makes no mention of historic bridges or highvrays, which are already servirg as
transportation tadlities. The Congress dearly did not intend to restrict the rehabilihation, repair or
improvement of these fadlities. FHWA, therefore, determined that Sedion 4(f) would apply Dory when an
hisbric bridge or highway is demolished, or ii me historic quality for whiGt the fadlity was detenntned to
ce 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 censultatbn with the SHPO
and/or THPO. Where FHWA detemmines 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 bcation when the
historic bridge is left in its original location 'rf its historic value will be mainfaited, and the proximity impacts
of the new bridge do not result in a substantial impairment of ete historic bddge. To satlsry the first
requirement, FHWA requires the establishment of a mechanism of continued maintenance to avoid the
dreumstance of harm to the bridge due to neglect.
Question C: How do the requirements of Sedion 4(f) apply to donafions pursuant to 23 U.S.C. 144(0) to
a Slate, locality, or responsible private entity?
Answer C: 23 U.S.C. 144(0) is a separate requirement related to historic bridges when demdition is
proposed. 23 U.S.C. 144(0)(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 significence, and
assume all future legal and financial responsibility for the bridge. Therefore, Section 4(f) will not appy to
the bridges that are donated according to requirements of 23 U.S.C. 144(0) as the bridge is not used in
the hansportation projed. The exceptbn found in 23 C.F.R. 771.135(f) also apples, given the
maintenance agreement that is required under 23 U.S.C. 144(0).
If the bridge marketing effort is unsuccessful and the bridge is tobe demolished, the evaluation must
inducts the finding that there is no feasble and prudent alternative to the use and the projed indudes all
possible planning to minimize harm.
Note: Programmatic Sedion 4(t) Evaluation and Approval forFHWA Projects that Necessitate the Use of
Historic Bddges (www.environment.thwa.dotcoviou~ebookhol2/docl5i.odil may be used for projects
that require dte use of an historic bridge.
Question D: Does Sedan 4(f) apply to other historic transportation fadlities7
IS
Answer D: Yes, bu[ in the case of restoration, rehabilitation or maintenance of historic transportation
facilitles (e.g. railroad statlons 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
5. Archaeological Resources
Question A: When does Section 4(f) apply to archaeological sRes?
Answer A: Section 4(f) applies to all archaeologinl sites that are on or eligible for indusbn on the
National Register and that warrant preservation in place. This indudes those sites discovered during
construction. Section 4(f) does not apply if FHWA, after censultation with the SHPO and/or THPO,
determines that the archaeobgical resource is important chiefly because of what cen be teamed by data
recovery (even ff it is agreed not to recover the resource) and has minimal value for preservation in place
(23 CFR 771.135(gp.
Question B: How are archeological sites dlscoveretl dudng constructlon of a project handled?
Answsr B: For sites discovered during construction, where preservation of the resource in place is
warranted, the Sedlon 4(f) process will be expedited. In such cases, the evaluation of feasible and
prudent alternatives will take mto account the level of investrnent already made. The review process,
inducting the consultation with other agendas should be shortened, as appropriate. An October 19, 1980,
Memorandum of Understanding with the Heritage Conservation and Recreation Service (now part of the
National Park Service) provbes emergency procedures for unantitlpated wllural resources discovered
during construction. The MOU is available in the FHWA Environmental Gu(debook
(www.emironmenLthwa.doGaov/auidebookNOl2/docl0i.odfl. 38 C.F.R. 800.13 addresses the process for
censklering post-review discoveries under the Sectlon 106 process.
Question C: How should the Section 4(f) requirements be applied to archaeological dlstrlds7
Answer C: Section 4{f) requirements apply to archeological districts in the same way as historic districts,
but only where preservation in place Is warranted. Section 4(f) would not apply N after wnsultatbn with
the State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO), FHWA
determines that the project would occupy only a part of the archaeological district which is considered a
non-centributhg element of that d~trict or that the project occupies only a part of the district vfiich is
Important chiefly because of what can be I~rned by data recovery and has minimal value for
preservation in place. As with an historic district, iF FHWA tlefermines the project will result in an adverse
effect on an archaedogipl district, which is significant for preservation in place, then FHWA must
consider whether or not the project impacts will result in a "substantial UnpaimrenP and a constructive use
determination Is warranted.
6. Public Multiple-Use Land Holtlings
Question: Are multple-use public land holdings (e.g., Natonal Forests, State Forests. Bureau of Land
Management lands, etc.) subject to the requirements of Section 4(t)7
Answer. Section 4(f) applies to historic properties (those on or el~lble for the National Register of
Historic Places) located on tlrese multiple-use land hddings and only fo those portions of the lands which
are designated by statute or ident'fiied In the management plans of the administering agency as being
primarily far park, recreafiOn, or wildlife and waterfowl refuge purposes, and determined th be significent
for such purposes. For example, within a large muttlple•use resource, like a National Forest, there can be
areas that qualify as 4(f) property (e.g. a campground, pimb area, etc.) while other areas of the property
function primarily for purposes other than park, recreation or refuges. Coordination with the offlcFal having
jurisdiction and examinadon of the management plan far the area are necessary to determine Section 4(f)
applipbility.
16
For public land holdings, which do not have management plans or existing management plans are out-of-
date, Sedan 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.
7. late Designation of 4(f) Resources
Question: Are properties in the highway right-of-way that are designated (as park and reaeatan lands,
wildlife and waterfowl refuges, or historic sites) late in the development of a proposed project subject to
the requirements of Sedlon 4(f)7
Answer. Ezcepl for archaeologipl resources (inducting those discovered dudng construction), a project
may proceed without consideration under Sectlon 4(f) if that land was purchased for transportation
purposes prior to the designation or prior to a change in the determination of signfirance and if an
adequate effort was made to identity properties protected by Section 4(f) prior to the acquisdlon. The
adequacy of effort made to identify properties protected by Section 4(f) mould consider the requirements
and standards of adequacy chat existed at the time of the search. Archaeologipl resources maybe
subject to the requirements of Section 4(f) in accordance with Question 5.
8. Wild and Scenic Rivers
t]uestlon A: Are Wild and Scenic RNers (WSR) subject to Sedan 4(f)7
Answer A: A Wgd and Scenic River (WSR) is defined as'a river and the adjacent area vrithin the
boundades 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 W ild and Scenic Rivers Ad (WSRA) (36 C.F.R. 297.3).
Signifkant publicly owned public parks, reueation areas, or significant wildltfe and waterfowl refuges and
histodc sites (on or eligible of the Natonal Register of Historic Places) in a WSR carrttlor are subject to
Section 4(f). Privately owned lands in a WSR corridor are not subject to Section 4(f), except for histodc
and archeobgical sites (see Question 5). Publicly owned lands not open to the general public (e.g.,
military bases and arty other areas with similar restricted access) and whose primary purpose is other
than 4(t) are not subject to Section 4(ft.
lands in WSR corridors managed for mulfiple 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 Questlon 6). WSRs are managed by four different Federal agendas, including the U.S. Forest
Service, the National Park Service, the Fish and Wildl'rfe Service and the Bureau of Land Management.
Close examination of the management plan (as required by the VJSRA) prior to any use of ttrese lands for
transportation purposes is necessary. Section 4(f) would apply th those portbns of the land designated in
a managemem plan for recreation or other 4(f) purposes as discussed above. Where the management
plan does not idemify specific functions, or where there is no plan, FHWA should consult further with the
river-administering agency prior to making the Sedan 4(f) determination.
The WSRA sets Pont those rivers in the United States, which are designated as part of the Wild and
Scenic RNer System. Within this system there are wild, scenic and recreational designatbns. In
determining whether Section 4(f) is applicable to these rivers, one must look at how the river is
designated, how the dver is being used and the management plan over that reach of the rNer. If therNer
is designated a recreational river under the Ad ar is a recreation resource under a management plan,
then tt would be a 4(f) resource. A single river can be dassfied as having separate wild, scenic and
recreation areas along the entire rNer. The designation of a rNer under the WSRA does not In itself
invoke Section 4(f) In the absence of 4(f) attributes and qualities. For example, 'rf 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 Serfion 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 riveradministering agency to make a determination as
17
to whether there are "direct and adverse effects" th the values of a WSR or congressionally auttrorized
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 W Section 5(a) of the Wild
and Scenic Rivers Act) 4(f) resources?
Mswer B: No, unless they are significant publidy owned public parks, recreation areas, and refuges, or
signifpnt historic sites in a potential river mnidor. However, such rives are protected under Section
12(a)' of the W SR4, which directs all Faderel departments and agencies to prated river values in addition
to meeting their agency mission. Section 12(a) further recognizes that paNalar atientbn should be
given to "timber harvesting, road consWdion, and similar activities, which might be contrary to the
purposes of this Ad`
9. Fairgrounds
Question: Are publidy owned fairgrounds subject to the requirements of Section 4(f)?
Answer. Section 4(f) is not applipbth to publidy owned fairgrounds that function primarily for
commerdal purposes (e.g. stock car races, annual fairs, etc.), rather than recreation. When fairgrouMs
are open to the public and function primarily for public recreation other than an annual fair, Section 4(f)
only applies to those portions of land determned signifpnt for recreational purposes.
10. School Playgrounds
(question: Are publicty owned school playgrounds subject to the requirements of Section 4(f)?
Answer. While the primary purpose of public school playgrounds is for structured physical eduption
dosses arM recreation for students, these properties may also serve significant public retreal'anal
purposes and as such, may be subJed to Section 4(F) requirements. W hen a playground serves Doty
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-0n"
recreational purposes, d is subject to the requirements of Section 4(f)'rf the playground fs determined to
be signifipnt for recreational purposes (see also Question 2 B). In determining the sign'rficanp of the
playground fadlities, there maybe more than one offitaal having jurisdiction over the fadlity. A school
oifidal is considered to be the offidal having jur~Sditdbn of the land dudng shood acdvitles. However, the
sdrool board may have authorized the cgY park and recreation departrnent or a public organ'rzatlon to
contrd the facilities after school hours. The actual function of the playground is the determining factor
under these dreumsfances. Therefore, doalnrentatbn should be obtained from the offidals having
jursdicthon over the facility stating whether or not the playground is of bpi sgnifipnp for retaeatbnal
Purposes.
11. Golf Courses
lluestlon A: Are public golf courses subJed to Section 4(f), even when fees and reservations are
required?
Answer A: The applipblity of Section 4(f) To a gog nurse depends on the ownership of the golf course.
There are generalty three types of gdf courses:
7) Publidy owned and open to the general public,
~ "The Secretary ofthe Interior, the Secretary ofAgriwlture, and the heed of any other Factual depertrnent or agency having
judsdicrion over aoy ]ands which include, border upon, or am adjacrnt t0. any river ircluded widrin the Natiwral Wild and Scenic
Slivers System or under consideration for such hsclusiay in accoMence with section 2(aXii). 3(a), re 5(a), shall uke such action
respecting mana8ementlwlicies, regulations, contracts, Plans, aReeting such lands, following the date ofrnaztrnrnt ofthis
srntrnce, as may be neussary to protect such dven in as:cordaoca with the purposes ofthis Act"
18
2) Privately owned and open to the general public and
3) Privately owned and for the use of members only.
Section 4(f) would apply only to those golf courses that are publidy owned, open ro public and
determined to be signifirantreaeational areas (see also Question 2 B). The first type of golf course
mentoned above indudes 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 ro be significant by the dty, county or shale oTfidal with jurisdiction and
FHWA agrees with this determination.
Section 4(Q would not apply to the two types oT privately owned and operated golf courses mentioned
above, even if they are open to the geneal public.
The Fad that greens-fees or reservations (tee times) are required by the fadlity does not alter the Section
4(f) applitatbility to the resource, as long as the standards of public ownership, public access and
significence are met. See Question 12 for more information on entrance or user fees.
Question B: How are °militap/' goK courses treated under Sedbn 4(f)?
Answer B: Milihary golf courses are a special type of recreational area. They are publicty owned (by the
Federal Government) but are not typicalty open ro the general public. Because the recreational use of
these fatalities is generally limited ro military personnel and they families they are not considered to be
public recreational areas and, therefore, Section 4(f) does not apply to them (see Question 2 C).
12. User or Entrance Fees
Question: Does the charging of an entry or user Tee affect Section 4(f) eligbilily?
Answer: Many eligible 4(f) properties require a fee ro enter or use the fadlity such as State Parks.
National Parks, publidy owned ski areas, historic sites antl putNlc golf courses. The assessment of a user
fee is generally related to the operation and maintenance of the facility and does not in and of itseR
negate the property's status as a 4(f) resource. Therefore, it does not matter in the determination of
Section 4(f) applicability whether or not a fee is charged, as long as the other criteria are satisfied.
Consider a public gott course as an example. As discussed in Question 11, greens-fees are usually'rf not
always required, and these resources are considered 4(f) resources when they are open ro the public and
detennlned to be significant. The same rationale should be applied ro other 4(f) resources and lands in
which an entrance or user fee is required.
13. Bodies of Water
Question: How does the Section 4(Q apply ro publicy owned lakes and rivers?
Answer: Lakes are sometimes subject ro multiple, even conflicting, adNlties and do not readily fit into
one ptegory or another. When lakes Tunction for park, recreation, or refuge purposes, Section 4(1) would
only apply ro those portions of water whk:h function primarity for those purposes. Section 4(f) does not
apply to areas which function primarity for other purposes. In general, rNers 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 B A and S B. Those portions of publicly owned
rivers, which are designated as recreational trolls are subject to the requirements of Section 4(f). Of
course Section 4(f) would also apply ro lakes and rivers or portions thereof which are contained within the
boundaries of parks, receeatonal areas, refuges, antl historic sites ro which Section 4(f) otherwise
applies.
14. Trails
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Question A: The National Trags System Act permits the designation of scenic, historic antl recreational
trails. Are these Veils a other designated scenic or recreational trails on publidy owned land subject b
the requirements of Section 4(f)?
Answer A: Public Law 95.625 provides that, no land or site lopled 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 Deparhnent of Transportation Act (49 U.S.C. 1853(f)) unless sudt land or siteis deemed to be of
historipl signthcence under appropriate historipl Site criteria, such as those for the Nagonal Register of
Historic Places. Only lands w sites adjacent b historic trails that are on or eligible for the National
Register of Historic Places are subject to Secficrr 4(f). Otherwise (pursuant to Public Law 95825),
national historic trails are exempt from Section 4(f).
~utrstlon B: Are trails on privately owned land, inducting land under public easement and designated as
scenic or recreational trails subject to the requirements of Section 4(f)7
Answer B: Section 4(f) does rat apply to frogs 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
pdicy that every reasonable effort should be made to maintain the continuity of existing antl designated
frogs.
Questlon C: Are trails on highway rightsof-way, which are designated as scenic or revea8onal trails
subject to the requirements of Sedion 4(f)?
Answer C: If the trail is simply described as occupying the rights•ot-way of the highway and is not limited
to any specific location within the right-of-v2y, a use of land would not occur provided that adjustments or
changes in the alignment of the highway or the frail waub not substantially impair the continuity of the
Vail. In this regard, g would be helpful if all future designations inducting those made under the National
Trails System Ad desabe the location of the trail only as generally in the right-of-way.
It should be noted that in T"Ne 23, Section 109(m) predudes the approval of any project, which will result
in the severance, a destruction of an exisfstg major route for non-mobr¢ed transptxtatbn traffic unless
such project provides a reasonable aitemative mute a 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)' is exempt from the requirements oT 23 U.S.C.
138 and 49 U.S.C. 303. This allows the USDOTIFHWA to approve RTP projects which are baled on
land within publidy owned parks or recreation areas without requiring a waiver a other Section 4(f)
doamentation (23 U.S.C. 206 (h)(2)). The exemptbn is Omited to Section 4(f) and does not appy to
other environmental requirements, such as the National Environmental Policy Ad (NEPA) or the
National Historic Preservation Act (NHPA). Mae information on the Recreational Trails Program is
available at www.thwa dot ~v/environmenthedrails/index.hhn.
75. Bikeways
Questlon: i)o llte requirements of Section 4(f) appy tobikeways?•
Answer If the tiublidv ownedbikewav is:orimarily usedfor trahsbo
erez;,.Section 4(f) would apply to publidy owned bikeways (or pdrtbns thereof) designated a functioning
primarily for recreation, unless the official having jurisdiction determines it is not significant fa such
purpose. Dudng earty consulfatbn 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.
stn 1498, the Transpor~tion Equity Act for the 21° Century (TEA-21) replaced the Netiooal Recreatiaml Tails F1ndmg
Progam seated by the Intermadal Surface Trensportation Efficiency Act (IS1'EA) with the Recrealiorel /trails Progarn (RTP)•
20
However, as with recreational trails: it the bilrEway is simply described as occupying the highway rights-of-
way and is not limited to any spedfic location within that rightof-way, a use of land vroukl not oxur and
Section 4(1) would not appty, provided adjusbnents or changes in the alignment of the highway ar bikeway
would not substantially impair the continuity of the bikeway. Just as with trails, Title 23 Section 109(m)
predudes the approval of any project, which will result in the severance or destruction of an existing major
route for non-motored transportation traRc, unless sudt project provides a reasonable alternative route
or such a route exists.
16. Jolnl Development (Park with Highway Corridor)
Ouestfon: When a public park, recreation area, or wildlife and waterfowl refuge is established and an
area within the 4(t) resource is reservetl for highway use prior to, or at the same time the 4(f) resource
was established, do the requirements of Section 4(f) apply?
Answer: No, the requirements of Section 4(f) do not appty to the~subsequent use of the reserved area
for its intended highway purpose. This Is because the land used for the highway project was reserved
from and, therefore, has never been part of the protected 4(f) area. Nor is there a consW dive use (23
C.F.R. 771.135(p)(5)(v)) of the 4(f) resource, since It was jointly planned with the highway project. The
spedfic governmental action that must be taken to reserve a highway corridor from the 4(f) resource Is a
question of state law and local law, but evidence that the reservation was contemporaneous with or pr'ar
to the establishment of the 4(f) resource Is always required. Subsequent statements of intent to consWct
a highway project witirin the 4(f) resource are not sufident All measures which have been taken to
jointty develop the highway and the park should be completely documented in the project records. To
provide flexibility for the future highway protect, state and local transportation agencies are advised to
reserve wide corridors.
17. Planned 4(f) Resources
Question: Do the requirements of Section 4(f) apply to publidy 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 publidy owned lands and
the public agency that owns the property has formally designated and determined R to be significant for
park, recreation area, wildlife and waterfowl refuge purposes. Evidence of formal designation would be
the inclusion of the publidy owned land, and its function as a 4(f) resource, into a dty 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 fadlity is presently publidy owned, formally designated and significant. When this is the case,
Section 4(f) would apply.
16. Temporery Reveational Occupancy or Uses of Highway Rightsof-way
Question: Does Section 4(f) appty to temporary recreational uses of land owned by a State Department
of Transportation or other Applicant and designated for transportatbn purposes?
Answer: In situations where land which is owned by a State DOT or other Applipnt and designated for
future transportation purposes (including highway rights-of-v2y) is temporarily occupied or being used for
etiher authorized or unauthorized recreational purposes such as for a playground or a bail (bike,
snowmobile, hiking, eta) on property purchased as rigMof-way, Section 4(f) does not apply. For
authored temporary ocwpancy of highway rights-of-way for park or reereatlon, m Is advisable eo make
dear in a limited occupanq permit, with a reversionary douse that no long-term right is created and the
park or recreational activity Is a temporary one pending completion of the highway or transportation
Prgect~
Note: In one recent proposed transportation project, lands designated for transportation purposes and
utilized for reueational uses pursuant to a revocable agreement granting temporary use, were found by a
court to be 4(f) resources, but this case had unusual fads. NeveAheless, it Is important to recognae this
21
_.
. ~
i
decision, even though it is contrary to FHWA policy (see Stewart Park and Reserve Coalition v. Slater,.
352 F.3d 545 (2nO Cir. 2003), Appendix A, Question 18).
19. Tunneling
Question: Is tunneling under a publicly owned public park, recreation area, wildlife or waterfowl refuge,
i
or historic site subject to the requirements of Section 4(f)? i
Answer: Section 4(f) would apply only if the tunneling:
i
1) Disturbs any archaeologipl sites on or eligible for the National Register of Historic Places which ~
l warrant preservation in place, or
2) Causes disruption which would permanently harm the purposes for which the park, recreation,
wildlife or waterfowl refuge was established, or
3) Substantially impairs the historic values of the historic site. ~~,
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 lvaterfowl 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 (NW RSA). 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 (inducting waters) where the major purpose of such land is the conservation, restoaton, or
management of endangered spedes, their habihat, and other wlidl'rfa and waterfowl resources. In
determining the major purpose of the land, consfderafion must be given to the foibwing: (i) the authortty
under which the land was acquired; (2) lands with special national w internatlonal designations; (3) the
management plan for the land; andlor (4) whether the land has been officially designated by a Federal.
State, or local agency having jurisdid'an over the land, as an area for which its major purpose and
(unction is the conservation restoration, or management of endangered spades, their habitat or wildlife
and waterfowl resources. Recreational acgvities, including hunting and fishing, are consistent with the
broader spades preservafan.
Examples of properties that ~ function as wildlife or waterfowl refuges Include: State w Federal wildlffe
management areas, a wAdl'rfe reserve, preserve or sanctuary, and waterfowl production areas, inducting
wetlands and uplands that are set aside (in a form of public ownership) for refuge purposes. The FHWA
must consWer the ownership, significance and major purpose of these properties In determining N Section
4(f) should apply. In making these detenninatbns FHWA should review the existing management plans
and consult with the Federal, State or kxal offidals having jurisdiction over the property. In some cases,
these types of properties will actually be multiple-use public land hddings of the type diswssed in
Queston 8, and should be treated aawdingly.
Question B: Are "conservation easements" acquired by the United States on private lands considered
Section 4(f) wildl'rfe 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 wildl'rfe and waterfowl refuges when tltey are part of the National W idlifa
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 ceses, FHWA must Consider the ownership, slgnlflcance, entl major
purpose of these types of properties in detennining iF Section 4(f) should apply.
21. A1rRlghts
22
Question: Do the requirements of Section 4(f) apply to bridging ovw a publidy owned public park,
recreaton area, wildlife or watertowl refuge, or historic site?
Answer: Section 4(f) will apply 'rfplers or other appurtenances are physically located in the park,
recreation area, wildlife and waterfowl refuge, or significant historic property. Where the bridge will span
Me 4(f) resource entirely, Me proximity impacts of the bddge on the 4(f) resource should evaluated to
determine 'rf the placement of the bridge will result in a constructive use (see Question 1 B).
22. Non-Transportation Use of 4(f) Resources
question: Dces the expendiWre of Title 23 funds for mitigation or non-transportation acWitles on a 4(f)
resource trigger the requirements of Section 4(f)7
Answer. No. Sedon 4(f) only applies where land is permanently incorporated into a transportation
fadlily and when the primary purpose of the activity on the 4(f) resource is for transportaton. If activities
are proposed within a 4(f) resource solely for the protection, preservation, or enhancement of the
resource and the official with jurisdiction has been consulted and concurs with this finding (in wrhing) then
the provisions of Sedion 4(f) do not apply.
For example, consider the construction or improvemem of any type of recreational fadlity In a park or
recreation area (see Question 24) or the construction of a permanent structural erosion control feature,
such as a detention basin. Where these activities are for the enhancement or protection of the 4(f)
resource, do rat permanently incorporate land into a transportation fadlity, do not appreciably change the
use of the properly and the officials having jurisdiction agree, Sedion 4(f) would not apply.
Mother example involves the enhancement, rehabilitation or creation of wetland within a park or othw
4(f) resource as part of the mitigation for a transportation projecPs wetland impacts. Where Mls work is
consistent with the function of the existing park and considered an enhancement of the 4(f) resource by
the official having jurisdiction, Men Seddon 4(f) would not apply. In this qse the 4(t) land is not
permanently incorporated into Me trensportafwn fadlity, even Mough k is a part of Me project as
mitigatan.
If activities funded wiM Title 23 funds result in a Substantial charge in Me purpose, function or change the
ownership from a 4(f) resource to Vansportatlon, Men Section 4(f) will appty.
23. Scenic Byways
Question: How does Section 4(f) apply to scenic hywaysT
Answer. The designation of a road as a scenic byway Is not Intended to create a park or recreatlon area
within Me meaning of 49 U.S.C. 303 or 23 U.S.C. 738. The improvement (reconstruction, rehabillfatlon,
or reloption) of a publidy-owned scenic byway would not came under the purview of Sedion 4(f) unless
Me improvwnent was to otherwise use land from a protected resource.
24. Transportation Enhancement ProJeets
Queston A: How is Section 4(f) applied M transportation enhancement aciviy projects?
Answer A A transportation enhancement activity (TEA) is one of twelve speclgc types of actdvtlies set
forth by statute at 23 U.S.C. 101(a)(35). TFAs often Involve Me enhancement of, or improvement to, land
Mat qualifies as a Section 4(f) protected resource. Fora 4(f) resource to be used by a TFJ1, two Mings
must occur, (1) Me TEA must Imdve Wnd 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,'rf a TEA permanently Incorporates 4(t) land
Into a transportation fadlity Men there is a use and Section 4(f) will appty.
The following TEAS have the greatest potential for Section 4(f) use:
- Fadlitles for pedestrians and bicydes
- Acquisition of scenic easements and scenic or historic sites
23
- Scenic or historic highway programs induding tourist and welcome canters
- Historic preservation
- Rehabilitation and operation of historic transportation buildings, structures, or fadlities (including
historic reilroad fadlitres and canals)
- Preservation of abandoned railway irtidors (induding the conversion and use thereof for
pedestrian or bicycle trals)
Conversely, the TEAS below are less likely to be subject to Section 4(f):
- Safety and edupfional activities for pedestrians and bicyclists
- Landspping or other scenic beautification
- Control and removal of outdoor advertising
- Archeological planning and research
- Environmental mitigagon of highway runoff pollution, reduce vehicle-caused wildlife mortality,
maintain habitat connectivity
- Establishment of transportatlon museums
In both ptegodes above, the questlon of Section 4(t) use must be evaluated on a case-by-pse basis.
To illustrate how Section 4(f) is applicable to a TFlt, consider the fdlowing lwo scenarios involving a
signfignt public park
Scenario 1: A TEA project fs proposed for the instruction of a new pedestrian or bike fadlity 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 offidals with Jurtsdictlon over the 4(f) resource to the State DOT or local transportation
auMority. Since this project would invove the °permanenl incorporation of 4(f) land into a transportation
Tacility'there is a use of 4(f) land and a Section 4(f) evaluation should be prepared. In this instance, The
Programmatic Secton 4(fJ Evaluetan for Independent Bikeway or Walkway Construction Protects
(wow.environment.Mwa.dotcov/ouidebook/voi2/docl5m.odFlwculd likely apply, depending on the
partlilar clrcumstances of the protect.
Scenario 2: The purpose of a TFA project is to instruct, rehabilitate, reinstruct ar refurbish an already
existing bike path or walkway within a public park This project relates to surface transportation but the
Improvement Is primarily interrded to enhance Me park In this case there is no'pennanent 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.
OMerTEA projects can involve existing transportation fadlities such as highways, bridges, and buildings
which are expected to have a useful life that is finite and therefore, intinually require maintenance a
rehabilitation. While 23 C.F.R. 771.135(f) may apply in certain instances, generally Speaking, the
rehabilihaton of a highway, building or bridge relates to surface transportatlon but does not rise to the
level of a Section 4(f) use (see also Question 4).
Archaeologipi planning and research projects Mat irnolve the potential use of a significant archedogicel
property are ivered by Me provisions of 23 C.F.R. 771.135(8) (see Question 5). Other TEAS may be
handled in acirdance wiM Mis answer. In complex sltuatlons Me FHWA Divisan Office should intact
Me Headquarters Office of Project Development and Environmental Review or Me Office of the Chief
Counsel for assistance.
Note: This answer supersedes Me August 22, 1994; Interim Guidance on Applying Section 4(tt On
Transportation Enhancement Projects and Natbnal Recreational Trails
24
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 devebpment of parks,
recreation areas, or wildlife and waterfowl refuges are not designated eligible TF1~s. Thus, in most
cases, the TEA by itself would not create a 4(f) resource, where one did not previously exist.
That being said, i[ is possible for transportation enhancement funds to enhance existing 4(f) resources,
such as a bikeway or pedestrian faclity that is constructed within a park. The use of TF~, funds in this
case would not after 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 fpr non-ransportaton purposes.
For more information, see the FHWA Final Guidance on Transportation Enhancement Activities;
December 17, 1999, and the TE Program Rented Questions & Answers; August. 2002, found at the
Transportation Enhancement Website (www.thwa.dot.gov/ernironmen7telntlex.htm).
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 m Sedion 4(f) unless they are
signficent historc properties.
Publicly owned zoos on the other hand, should be evaluated on a pse-by-case basis to determine the
major purpose of these resources and 'rf they are significant park and/or recreational resources. To the
extent that these resources are considered to be signficant park or recreational areas, or are significant
historc properties, they will be treated as 4(f) resources.
26. Tribal Lands and Indian Reservations
Question: How are lands owned by Federally Recognized Tnbes, and/or Indian Reservations treated for
the purposes of Secton 4(f)?
Answer. Federally recognized Indian Tribes are Considered sovereign nations, therefore, lands owned
by them are rrot considered to be °publidy owned within the meaning of Sedion 4(f), nor open to the
general public, and Sedion 4(f) does not automaticalty apply. However, in siWations where lt is
determined that land or resources owned by a Tribal Government or on Indian Reservation functions as a
signficant 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, Sedion 4(f) would apply.
27. Traditional Cultural Properties
Question: Are lands that are considered to be tradltional allural properties subject to the provisions of
Sedion 4(f)?
cultural practices or beliefs of a living community that (a) are rooted in that communitys history, and (b)
are important in maintaining the continuing cultural itlentlry of the community. Land referred tc as a TCP
is riot automatically considered historic property, or treated d'dferently from other historic property. A TCP
must also meet the National Register criteria as a site, sWdure, building, district, or object to ba eligible
for Sedion 4(f) protection.
25
For those TCPS related to an Indan 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 Ure State Historic Preservation Officer (SHPO) should be consulted.
26. Cemeteries
Question A: Dces Section 4(f) apply to cemeteries?
Answer A: Cemeteries would only be considered 4(f) properties ff they are signficant historic resources,
i.e., determined to be on or eligible for the National Register of Historic Places.
Question B: Dces Section 4(f) apply to other lands that captain human remains?
Answer 8: Lands that contain human remains, such as graveyards, fatuity burial plots, or Native
Ameripn burial sites and those sites that contain Native Amergn grave goods associated with burials,
are not in and of themselves considered to ba 4(f) resources. However, these types of lands may also be
historic properties indudetl on or eligible for indusion in the National Register. These sites should rrot
automaticelly be considered only as archeobgipl resources as many will have value beyond what cep be
teamed by data recovery. If these sites are National Register listed or eligible and also warrant
preservaton in place, Section 4(f) applies (see Question 5). For more information on the subject of
historic cemeteries see, National Register Bulletin N41, Guidelines Ior Evaluating and Registering
Cemeteries and Burial Places; 1992.
When conducting the Sedion 4(f) determination for lands that maybe Native American burial sites or
sites whh s' nificance to a Federal) R - - ------°-°°°--°-~°--------
tg y ecognized Tribe, consultation with appropriate representatives from
the Federally Recognized TrAtes with interest in the site is essential.
29. SeUion 4(f) Evaluations In Tiered NEPA Documents
Question: How should Secton 4(f) be handled in tiered NEPA documents?
Answer: This issue is addressed to some degree in 23 C.F.R. 777.135(0)(1). Because the projed
development process moves from a broad scale examiretlon at the tierone stage, to a more site specific
evaluation in tier-two, does not relieve FHWAfrom its responsibility to consider feasible and prudent
avoidance altematives to the use of 4(f) resources at the tier-one stage. Where al I alternatives in the
second tler analysis use a 4(f) resource, tl may be appropriate and necessary to reconsider the feasibility
and pmdence of an avoidance atiemative that was eliminated during the tier-one evaluation phase.
30. Department of the Intertor Handbook on Departmental Ravlew of Sedlon 4(f) Evaluations
(2002)
Question: What is the oTficial status of the February 2002, Handbook on Departmental Reviews of
Sedion 4(t) Evaluatans, Issued by the Department of the Interior, Office of Environmental Policy and
Compliance?
Answer: Section 4(f) legislation (23 U.S.C. 138 and 49 U.S.C. 303) identifies the Department of Interior,
as well as the Departments of Agrlallure and Housing and Urban Development as having a rde in
Section 4(f) matters. The U.S. Department of Transportation (DOT) 8 required to consult and cooperate
with these Departrnents in Section 4(f) program and projeU related matters.
The purpose of the Handbook is to provide guktance to the National Park Service (NPS), U.S. Fish and
Wildlife Service (FBWS) and other designated lead bureaus in the preparation of DOI comments on
Section 4(ry evaluations prepared by the DOT, pursuant to the authority granted In Titles 23 and 49. The
Handbook is an offidal DOI dowment and includes departmental opinbn related to the applicebllity of
Section 4(f) to lands for which they have jurisdiction and authority. FHWA values the DOI's opinions
related to the resources under theirjurisdictbn, and while the Handbook provkles resource information Tor
FHWA W consider, it is not the final authority on Section 4(f) determinations.
26
Official FHWA policy on fhe applipbllity of Section 4(1) to lands that fall within fhejurisdiction of the DOI is
contained within 23 C.F.R. 771.135 and this Policy Paper. FHWA is not legally bound by the Handbook,
or the wmments provided by the DOI or leatl bureaus, however, every attempt should be made to reach
agreement dudng projea consultation. In some siWations one of the bureaus may be an official having
jurisdiction. When unresolved conflicts arise during coordination with the NPS, F&WS or other bureaus
related to the applicability of Section 4(f) to certain types of land or resources, it maybe necessary for the
Division Office to contact the Office of Project Development and Environmental Review for assistance.
27
APPENDIX A
Analysis of Case Law
The following analysis provides brief legal notes and dtations to some Section 4(f) cases That relate to the
subject matter discussed in the question and answer section of the Section 4(f) Policy Paper. This
section is provided for informafanal purposes and as background to the policy addressed in the question
and answers. In some instances, case law does not address the specific example in me Poicy Paper.
Also, there are some examples that have had no case address me subject matter of the question. When
you have specific legal questions or need legal advice about Section 4(f) applicability, please wMad the
Legal Staff of the Office of Chief Counsel wimin your geographic area. FHWA reserves the right to
modify and update this appendix as case law becomes applipble.
7. Uae of Resources
Question A: What constitutes a'use" of land from a publicly owned public park, recreation area, vnldlife
refuge, and waterfowl refuge or historic s8e?
Legal Note: A number of cases have discussed "use" and "constructive use' and only a tew are
meMbned here. Several courts have held that the term `use" is to be construed broadly, not limited to
the wncept of physipl Taking, but includes areas that are significantly, adversely affected by the project
Adler v. Lewis, 675 F.2d 1095, 1092 (9~ Cir. 1982); Concerned Cifpens Alliance v. Slater, 176 F.3d 686
(3 CI'-~. In Concerned Citizens, R ~+ras undisputed that the preferred alignment would "use` an
historic district by sending through the district, resulting in visual, oratfic, and noise and vibration impacts.
The issue in that pse was whether the preferred alternative would impose the least harm on the historic
district.
In Brooks v. Voloe, 460 F.2d 1 f 93 (9r' Cir. 1972), the Court held that oonsWction of a segment oT
IntersNate Highway I-90 which would encircle campground areas would result in a "use" due to the indirect
impacts to the campground under Section 4(f) expanding the physipl use concept to what would later be
plied constructive use and coded in FHWA's regulations at 23 C.F.R. 771.135(p).
Question B: How is "consWCtive use" defined and determined?
Legal Note: Sgnfipnt adverse indirect kneads, now piled "substantial impaumenY in FHWA's
regulations, can result in a conswdive use. D.C. Fed'n of Civic Assns v. Vdce, 459 F.2d 1231 (D.C.
Cir. 7971). At the same time, not every change within park boundaries constitutes a'use" of Section 4(f)
lands. Coalition on Sensible Tmnso.. Inc. v. Dde. 826 F.2d 60 (D.C. Cir. 1987). No "use" occurs where
an action will have only an insignNpnt effect on the existing use of protected lands. In Geer v. FHWA,
975 F. Supp. 47, 73 (D. Mass. 199, the court upheld the FHWA's determination of no conswctive use,
which concluded that the noise and visual impacts were not signifipnt given the exis8ng urban context of
the project antl existing impacts under the no-build option.
In Davis v. Mineta, 302 F.3d 1104 (10r" Cir. 2002), construction of a project that would substantially Impair
the aesthetic attributes assodated with the Jordan River Parkway was subject to Section 4(f) due tome
disruption of the natural selling and feeling of the Parkv2y. In mat pse, noise levels ware expected to
increase at least ten dedbels in the parkway. In Conservation Soe'v of S. Vt. v. Sec'v of Transo., 443 F.
Supp. 1320 (D. Vt.1978), "dose proximity" of the proposed highway project to the Lye Brook W ikiemess
area was deemed a "use" of publicly owned recreation land subject to Section 4(f).
The effects of noise pn result in a constructive use. In Allison v. DOT 908 F.2d 1024, 1028 (D.C. Cir.
1990), me court determined mat me FAA erred in conskfedng only me effect on humans using a Section
4(f) shale park. However, the court uttimalely found mat mere was no vitiation of Section 4(Q bepuse
the operation of the new airport would not result in a signfipnt increase in the noise level over the level
of me current fadlity. There was a similar result in Siena Club v. United States Deo't of Transo., 753 F.2d
120 (D.C. Cit. 1985), in which the increase in cumulative noise from me new fadlity was found not to be
signifipnt
28
More recently, in Citv of S. Pasadena v. Slates, 56 F. Supp. 2d 1106 (C.D. Cal. 1999), the plaintiffs
argued that ihe710 Freeway Projed vrould constructively use historic sites by substantially impairing the
aesthetic features or attributes of the s8es. They argued tllat the proximity of the freeway W historic
properties resulted in at least two forms of constructive use. First, [o the extent that the overall setting of
a property is an important contributing element to the historic value of the property, this attribute would be
impaired. Second, they argued, the mwe proxundy of the freeway to the historic properties would result
in addigonal impairments. The Defendant argued that setling was not a major asped of the qualities that
made these specific properties eligible for the National Registw. The court found that this detertninadon
ores simply a condusion for which no analysis was offeretl. With regard to proximity, the projed would
come within 15 feet of an historic distrid. The court noted that other courts have fountl that throe Is a
consWCtiveuse in situation where there is a greatw distance between the projed and the section 4~f)
resource. (See, for example, Coalition Against Raised Expressways. Inc v. Dole. 836 F.2d 803 (11 Cir
1988) (on-ramp within 43 feet of Sedion 4(f) sW duce is a corutrucdve use); Stoo H-3 Assn v. Coleman.
533 F.2d 434 (9~ Cir. 1976) cons}rudipn of six-lane controlled access highway passing witltin 700-200
feet of Sedan 4(f) resource is a consWdive use)_ In City of S. Pasadena, the court found serious
questions as W whethw defendants abused their discretion in finding that the 710 Freeway Projed woultl
not result in any constructive uses of eligible historic resources.
Question C: When tloes temporary occupancy of a 4(f) resource result in a 4(f) use?
Legal Note: In Coalition On Sensible Transo. Inc. v. Dole, 642 F. Supp. 573, (D. D.C.1986) the project in
Montgomery County, Maryland, proposed to widen 16 miles of Intersfate 270. Among other violations,
plaintiffs arguetl that the projects impacts to several parklands constiWted a use under Sedion 4(f).
The Sedion 4(f) statement for this projed examined 7 parks and conservation areas. In 4 of the 7
resources, temporary construc0on easements would be granted for grading and after consWclion was
completed, would be regraded, revegetated and then returned for use as a parkland. The court found
that, the projects temporary impad upon parkland during the construction period does not amount to
'use' within the meaning of section 4(f)." 642 F. Supp. at 596.
Further, since the narow strips of parkland were in dose proximity to the existing highway, and the
administrative record established that none of the land was being adivety used by park auMoritles, the
court determined that this projed would not'substan8ally impair the value' of parkland in this case. Id.
The court also found that even ff the projed resulted In a Sedion 4(f) use, Sedion 4(f) woukf not have
been vblated.
(On appeal in Goalitbn on Sensible Transo. Ino. v. Dole. 826 F.2d 60 (D.C. Cir. 1987), the Court affirmed
the lower court's dedsbn for othw reasons. The Appeals Court reasoned that since there were other
physical uses of other Sedion 4(f) resources in the projed area, the questlon of temporary occupancy
amountlng to a use eras not necessary).
Practitioner's note: The disvict court case is useful as an example where the temporary ocarpancy of
parkland by a temporary construction easement did not result in a use unties Sedion 4(f).
2. Public Parks, Public Recreation Areas, and Wildlife and Waterfowl Refuges
Question A: When is publidy owned land considered to be a park, rerxeatbn area, or wiktlife antl
wa[erfowl reWge and who makes Utls determination?
Legal Note: In IGckapoo Valley Stewardshio Assn. v. U.S. Deot of Tranap., 37 Fed. Appx. 810 (7~ Cir.
2002) (unpublished), the Court held that Sedion 4(ry only applies W those lands formally dasslfied as
parks, retteatlon areas, wildlife and waterfowl refuges, or historic sites. The Kickapoo Valley Reserve
property was originally planned for an Army Corps of Engineers flood-control project The dam projed
was gncelled and an Ad of Congress transferred the properly a the State of Wisconsin. The legislatlon
spedtled that Me land was to "be preserved in a natural state arM developed onty to the extent necessary
W enhance outdoor retteational and eduptlonal oppwWnities." The Court found that this legislative
29
i _ _ _ ~ ,.
language restricting use was not sufficient to designate the Reserve as Secton 4(f) land. The Court
further found that tt was not arbitrary and capricious for USDOT to deckle not to consider the Reserve as
Section 4(f) land based on the multiple uses of the Reserve, including significant portions being used Tor
agriculture.
In Stewart Park & Reserve Coalitan v. Slater, 352 F.3d 545 (2nd Cir. 2003), the Court held [hat Section
4(f) contains no requirement that the public parklands to which it applies must be cennanentlv designated
as such. The Court determined that Section 4(f) applied, even though the public lands to be used in the
project were originally acquiretl for transportation purposes (airport expansion and access). Although the
land was never permanently designated as parklands, it was available to Oie public for use as park antl
recreational area for almost 30 years. (See also Legal Note in 18 of this Appendix)
Question B: How should the significance of public parks, recreafion areas, and waterfowl and wildlife
refuges be determined?
Legal Note: Land that is used as a public park is presumed sign cant for Section 4(t) purposes unless
explicitly determined otherwise by the appropriate federal or lopl officials. Arlington Coali0on on Tmnso.
v. Volpe, 458 F.2d 1323 (4'" Cir. 1972). FHWA reviews the state determinaton d sign~cance of a public
park for reasonableness. Concerned Citizens on 1-90 v. Sec. d Transo.. 641 F2d 17 (1° Clr. 1981); ,eer
v. FHWA. 975 F. Supp. 47, 64 (D. Mass. 1997).
8. Wlld and Scenic Rvers
Question A: Are W ild and Scen(c Rivers (WSR) subject to Section 4(f)7
Legal Nole: In Hells Carnon Pres. Council v. Jacobv, 9 F.Supp.2d 1216 (D. Or. 1996), the court found
that a consistency determination supported FHWA's CE. Although that case did not involve a Section 4(f)
analysis with respect to the river, the court's reliance on me consistency determination in concluding that
there would be no sign'rfk;ant impact on the wild and scenic river values should apply equalty to a Section
4(f) COna1NCtIVe use analysis.
Practitioner's Note: When projects may have some arguable constructive use of publicly owned waters
or on publidyowned lands administered for Secon 4(f) values, tt generally will be helpful to obtain a
written consistency determination from the river manager. Such consistency determination may prevent a
'constructive use' determina5on.
70. School Playgrounds
Question: Are publicly owned school playgrounds subject to the requirements of Sectlon 4(f)?
Legal Note: In Piedmont Envtl. Coundl v. U.S. Dept. of Transo.. i59 F.Supp.2d 260 (W.D. Va. 2001),.
afPd In relevant Dart 58oart 58 Fe~ Cir. 2003), the court found that the taking of some land of one
school for a bypass constituted Secon 4(f) properly but that the agency was not arbitrary and capricous
in concluding Otat tlrere were no other feasible and pendent alternatives than taking the land. The court
further found that °(bjecause the defendants concluded that We redeatlonal facitties affected by the noise
and visual impacts of the bypass were not noisevensitive and that differencos in elevation and the
existing wootl buffer would screen the bypass from view, see id. at 35, the Secretary was within the snipe
d his authority and did not arbitrarily and capriGously conclude that no constructlve use would occur"
Pradkloner's Note: There is both an actual and a consWdrve use of school property that should be
considered. When the project will take a portbn or ail dschcel properly open for recreational activity,
than Section 4(f) must be consdered. However, when the project simply comes near such property, the
visual and auditory impacts should be analyzed. If the school properly is nd noise sensi8ve, then
auditory concerns will rat translate into a constructive use. If the visual impact can be shielded by
vegetation ar elevation dttferences, then visual concerns may rat translate into a constructive use.
30
However, a thorough study of the effects on the sdwol property provides needed support for a contusion
that there is no constructive use.
15. Bikeways
t2uesdon: Do the requirements of Section 4(f) apply to bikeways?
Legal Note: In Lacuna Greenbelt Inc. v. U.S. Deot. of Transo.. 42 F.3d 517 (9r' Cir. 1994) the Dour[
found that an overpass over a bike trail, a widening of an existing bridge over a bike trail, and the
relocatan of a bike path within the designated dght-of-way for the bike path did not constitute either
actual or wnsWCtive use of the respective trails.
Calio v. Pa. Deo't of Trenso.. (NO.00-2163, 3d Circuit, OGober 10, 2001). This litigation involved a
Pennsylvania Department of Tmnsportation (PennDOT) proposal to develop a stretch of abandoned
railroad track in suburban Philadelphia as a bicycle and pedestrian trail, using funds from the Congestion
Mitigation and Ak Quality Improvement Program (CMAO). 23 U.S.C. 104(b)(2) 217. The proposed trail is
a non-National Hghway System project subject to an exemption agreement entered into by FHWA and-
PennDOT in 1992. See 23 U.S.C. 106(b)(2) (1991).
The case involved a single issue: would the trail be used principally for transportation, rather than
recreation purposes as required for projects funded from the CMAO program? The District Court upheld
FHWA's determinatbn that the trail project would be principally for transportation, say(ng k was supported
by the administrative record and neither arbitrary nor cepricious. The appellate court, in a three-page
decision, agreed. Although the Thkd Circuit dedsion may not be cited as precedent, the DistriU Court's
decision has been publishetl. See Calio v. Pa. Deo[. of Transo , 101 F.Supp. 2d 325 (E.D. Pa. 2000).
Praetttloner's Note: If the project can be consW ded so as to preserve the trail, tiren generally there will
not be cr'use' of the trail. Thus, an overpass or even the reloption of the trail within the trail's existing
right-of-way may avoid a °use" of the 1raiL Even if a bike path has some recreagonal purposes, Nat does
not mean it is not
16. Joint Development (Park with Highway Corridor)
Question: When a public pads, recreation area, or wildlife and waterfowl refuge is established and an
area within the 4(f) resource is reserved for highway use prior tp, or at the same 6me the 4(f) resource
was established, do the requirements of Section 4(f) apply?
Legal Note: In Sierra Club v. Dole. 948 F.2d 568 (9°i Cir. 1991) the 9"' Circuit reversed the district ceurPs
1987 ruling that the Serretary had failed to comply wigs Section 4(f) by ruling tttat a planned bypass road
consW ctively used the McKee Ranch Park. In 1984, the McKee Ranch State Park was transferretl to the
Califom~ Departrnent of Parks and Recreation. This transfer deliberatety set aside part of the land that
was to form Me park, due to the CalTrans belief that this set aside land might be necessary for a future
bypa53 of an area commonly know as °Devil's Slide° on California State Highway Route t. The Devil's
Slide was a 60afoot section of Route 1 that repeatedly was dosed due to landslides.
In 1966, the Secretary approved a Final Envlronmenfal Impact Statement for dte Martini Creek
Alternative, but this FEIS did not ktdude a Secton 4(f) evaluation for the McKee Ranch Park
In the 9'" Cirwit, USDOT Gaimed there was extensive cooperation between CalTrens and the park
planners throughout the process of park acquisition and the road alignment The murt also examined the
Iegislatlve history of Section 4(t) and found Congressional reports that stood for the proposition that
Congress thought that ttte joint planning of roads and parks was desirable.
Additionally, the court stated that,
31
"[w]here a park antl a road are joinfry planned on land which previously had neither park or
road...no consensus is being upset. The community is not changing ks mind about the type of
park and road it would have, but is making the determination in the first instance. It is d'dfiwlt to
sea how the road would significantly and adversely affect the park." (948 F.2d 575)
Further, the 9'^ Circuit held that a road does not `mnsVUctivery use" a park 'rf the road and park were
jointly planned. The court also emphasized that this is only applicable when there Is constmcive not
actual use of a parkland.
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 presantiy
functbning as such?
Legal Note: In Nat'I W ildl'rfe Fed'n v. Coleman, 529 F.2d 359 (5"' Cir. 1976) plaintiffs contended that
FHWA vidafetl Sectlon 4(f) by fa0ing to prepare a Section 4(f) statement for a sekdion of I-10 that planned
to transed the habitat of the Mississippi Sandhill Crene, bisect the eastern portion of a proposed refuge
for the crane, and traverse Section 161and held by the State of Mississippi in trust for the Jackson County
School District
The court determined that for Sectlon 4(f) to apply to the lands at issue in this case, they must meet the
following two-part test First, the lend to be used by the project must be publicly owned and second, the
land must be from one of the enumerated types of publicy owned lands. The court found that the Section
i6land, ahhough publicy owned, was never designated or administered as a wildlife refuge or any other
Section 4(f) purpose notwithstanding the fad that the land was used by fire Sandhll Crane as a
sanctuary. In addition, the court found Section 4(Q was not applicable to the proposed wildlife refuge,
because at the time the right of way for the project was acquired, and during the time the plans were
approved, estlma[es and spedficatlons were given, construction awards were given, and when
constructan began, the land was not publidy owned. A subsequent transfer of the land to fhe Fish and
Wlltllife Service did not make Sectlon 4(f) applicable after the tad.
In Davis v. Mineta 302 F2d 1104 (10w Cir. 2002) two parks were planned whhin the area of potential
effect as part of a highway project within the cities of Draper, Sandy and South Jordan in Salt Lake
County, Utah. Here, the Jordon River Parkway was owned by two private landowners and partially by the
Utah Deparhnent of Natural Resources, Division of Parks and Recreations. This land vras designated as
parkland on fhe South Jordan City Parks and Recreation Master Plan. The other properly at issue was
the Willow Creek Park This park was planned in the Draper City Master Plan to be parkand but was
owned by a private lantlowner. The 10 Circuit found that W Illow Creek did not qualify as a Section 4(f)
property, due to its private ownership, as did that portion of the Jordan River Parkway not owned by the
State of Utah. However, that part which was owned by the State of Utah did qualify as Sectlon 4(f)
property due to Its public holding.
18. Temporary RecreaBonal Occupancy or Uses o} Highway Rightsof--Way
Question: Does Sectlon 4(f) apply to temporary recreational uses of land ovmed by a State Department
of Transportation or other Applicant and designated for transportatan purposes?
Legal Note: In Collin County. Tex v. Homeowners Assn For Values Essent~l to Netohborhoods
HAVEN 716 F. Supp. 953 (N.D. Texas 1989) HAVEN contended that certain lands should have been
viewed as Sectlon 4(f) properties in the Secton 4(f) evaluatlon in the Final Environmental Impact
SfatemenL In this case, the properties at issue were acquired by Dallas County from a private party In
1973 for use as highway right-of-way. UMer an agreement between the City of Carrollton and Dallas
County, the rightof-way was being used for recreatbn. Plaintiffs countered that Sediwt 4(f) is
inapplicable to temporary uses ofhighway rightsof--way for recreational activitles.
32
The court concluded that FHW A did not err when the Section 4(f) evaluation determined that these
properties were not Section 4(f) resources. Reasoning,
"The properties in this case were acquired from a private owner by Dallas County for right-of-way
purposes; they are being used temporarily as a park. Simply because they have an interim use
does not change (heir character: they were purchased as rights-of-way and they will be used as
rightsrof-way." 716 F. Supp. at 972
A recent decision, known as the Stewart Airport Case, undercuts the position that land acquired for
transportation use cannot become a Section 4(f) resource by permissive interim use. Stewart Park and
Reserve Ccalitlon Inc. v. Slates 352 F.3d 545 (2nd Cir. 2003).
The case involves approximatety 1200 aces of some approxlmalely 8600 aces of land acquired for
airport use. The proposed use of the 1200 acres was for construlion for airport access and highway
improvemerds. The land at issue was never designated as a parkland, but was managed by fire state as
such, until its use was required for airport and transportation purposes. The airport land was inkially an
Air Force base and was transferred to the stale for use as a commerdal airport. The state acquired the
adjacent approximate 8600 acres in the 70's for use as airport expansbn land and uses consistent with
airport use, as per FAA regulations. These lands also included buffer lands. At issue was whether
Section 4(f) applied to these adjacent lands.
The state entered into a revocable agreement with the New York State Department of Environmental
Conservation to manage the land until needed for airport use. The terms of the tortnal revocable
agreement stated that the agreement could be terminated upon 80 days notice of the land becoming
necessary for airport use. The IarW was managed and used for rerreational purposes during the entire
agreement period, until the time It hename necessary for transportation purposes.
The court held that 3o years of uninterrupted contiguous use of public recreational uses of this land,
regardless of the revocable agreement and that fad the lands were originally acquired for transportalfon
purposes, nonetheless, constituted Section 4(t) protected land. Further, the statutory language does not
condition protection of land on befog permanently designated as such. Additionally, 30 years of use
entitled the land in question to Section 4(f) protection as the uninterrupted period could not be
characterized as interim.
21. Air Rights
Question: Do the requirements of Section 4(f) apply to bridging over a publicly owned park, recreation
area, wildl'rfe refuge, waterfowl refuge, or historic site?
Legal Note: In Cklzens for the Scenic Sevem River Bridae Ina v. Skinner, 802 F. Supp 1325 (D. Md.
1991) dtizens and opponents of a bridge consWction project sdught to join state and federal offidals
from proceeding with consWction of a bridge across the Sevem River in Anne Arundel County, Maryland.
Among other contentions, plaintiffs argued that use of the Sevem River was not adequately consWered in
the Final Section 4(f) statement. However, in the Section 4(f) statement defendants concluded there
would be a use of the river, which the court found to be a Section 4(f) resource. The use entailed
placement of piers and pilings in the river, poss~le runoff and removal of the existing bridge. Further, the
statement determined that any of the proposed altemalNes would have used the river.
Coalkion Aoainst A Raised Exoresswav Inc. v. Dole, 635 F2d 803 (11"' Cir. 1988) examined the impacts
of an elevated expressway on tllree Section 4(T) resources in the downtown area of Mobile, Alabama. At
issue were a park. a railroad terminal afttl the dty hall. DeferWanb argued that in Ilghl of the location of
these properties in the down~vm area, the impacts from the expressway would not be subsfantlal so as
to amount fo a use of these properties. However, the court reasoned that,
"In addition to the noise aM air polution, tl~ raised highway vrould impact on the protected sites
by impairing the view. The hghway would cut off the city hall's view of Ste river and the docks.
33
Conversely, it would reduce the view from the river of the ctty hall's architecture. For the park and
the railroad terminal, the highway would replace the view of the downtown wdth the sight of the
seventeen-foot concrete pliers holtling up the freeway. In addition, the dirt and debris from an
elevated freeway would lessen the beauty of the architecture itseB.
While the elimination of the view, the increase in noise and air pollution, and the dose location of
the highway may not individually censtiwte a use; cumulatively they sigpfican8y impair the utility
of the properties.° 835 F.2d at 872
The court found that the elevated expressway constructively used these Section 4(f) resources.
22. Non-Transportation Use of 4(f) Resources
Question: Does the expenditure of Title 23 funds for mitigation or non-transportation activities on a 4(f)
resource trigger the requirements of Section 4(f)7
In National Tmst for Historic Preservatbn v Dole, 828 F.2d 776 (D.C. Cir. 1987), the court found that
installing suidde prevention barriers on an historic bridge was not a Uansportatfon program or project and
therefore Section 4(f} was not triggered. The court looked at the purpose of the project and found that
Since it was not a project to tactlitate transportation --the movement of vehicles, Sectlon 4(f) tlid not
apply.
Miscellaneous Section 4(f7 Cases Wlth Important Information
For general guidance on the issue of whether or not an avoidance altematNe is impmdent and, therefore,
may be rejected, relevant qse law is below.
The Fifth, Ninth and Eleventh C'vait Courts of Appeals have employed a stricter shandafd in determining
whether an altemattve is impmtlent than other Ciraits. See, Louisiana Environmental Soviet v. Cdeman.
537 F.2d 79 (5th Cir 1976); Stoo H-3 Association v. Bdneaar, 533 F.2d 434 (9th Clr. 1976); Der id Hills v.
FHWA, 772 F.2d 700 (11th Ck. 1985).
Courts in the Fourth, Seventh and Tenth Circuits have interpreted the requrements less stringently. In
these judsdictlons, a balandng test for determining whether an altematlve is imprudent has been
developed. Hickory Neichborhood Detense League v. Skinner, 910 F2d 159, 163 (4th Cir. 1990); Eacle
Foundation. Inc. v. Dde. 813 F.2d 798, 804 (7th Clr. 1987); Committee to Preserve Boomer Lake Park v.
USDOT 4 F.3d 1543, 1550 (10th Cir. 1993). In thesejurisdictions the courts allow the Secretary b weigh
the wmulative impacts of the avoidance attematlve against the cumulative impacts of the non-avoidance
alternative to reach a decision. The impacts lb be compared in this type of analysis include other impacts
in addition to the impacts on the Section 4(f) resource. The extent of harp that would be caused to the
Section 4(f) resource'rf is not avoided would be taken into consideration under this test
In the other Federal Ciraits the case law Ls less dear. See Monroe Counlv Coundl v. Adams, 566 F.2d
419 (2nd Cir. 1977) {employed a balandng test without stating it was doing so). The Eighth and the Third
ClrcuiLS have recently adopted a more flexible standard for `prudenC but only for the Ilmitee purpose of
determining whether an altematlve that minimizes harm can be rejected as `imprudent' See, Bddceton
v. Slater. 212 F.3d 448 (8th Cir. 1989)(court refused to empty a rigid "least harm' test in an airport
expansion case as this would conflict vrith Congressional mandate th factlitate airport expansion);
Concerned Citizens Alliance v Slater. 176 F.3d 68B (3rd C'v. 1999)(decision found that standard for
°pnxlent and feasible' was not quite as high when applied to alternatives that minim¢ed harm and
granted the Seoetary "slightly greater leeway in eliminatlng options that minin¢ed harm as Imprudent).
When addressing the question of which standards apply in your state or district you should consult with
the Office of the Chief Counsel's Legal Staff.
34
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MEMORANDUM
TO: John Krueger
FROM: Jim Hanson, P.E., PTOE
CC: Jamie Archambeau, P.E.
DATE: May 29, 2008
SUBJECT: State Highway 82/Truscott Drive Signal Timing
Introduction
The City of Aspen requested PBS&J to follow up on [he recommendations identified in the February
2008 report titled SH 82 Turn Restrictions Study. The study recommended the cycle of the traffic signal
at the Stale Highway 82 (SH 82)/Tmscott Drive intersection be doubled during the PM peak of traffic to
improve the flow of traffic westbound out of Aspen during this heavy commute period. The signal
timing at [he SH 82/Truscot[ Drive intersection was modified on Tuesday, May 13, 2008 per the
recommendations in the SH 82 Turn Restrictions Study. This memorandum provides a brief summary of
[he results of the implemented modified signal timing.
Evaluation
The revised signal timing was implemented on May 13, 2008, ahead of the peak summer demand.
Unfortunately, this was in the middle of the construction of the new bus lanes for the Entrance [o Aspen.
Because of the construction, traffic along SH 82 was often interrupted by construction activities, making
travel inconsistent and difficult to compare from one day [o [he next.
Travel times were recorded the week prior to the timing implementation, the day of the timing
implementation and one week after the timing implementation. As a result of the construction the travel
times along SH 82 fluctuated dramatically, as construction work stopped traffic, impacting traffic flow;
therefore, the [ravel time studies were inconclusive.
As a result of [he construction activity, corridor travel times could not be used [o effectively measure the
benefits of the timing improvements. Therefore other measures were identified to evaluate the benefits
of the SH 82/Tmscott Drive intersection signal timing improvements. Specifically, the capacity of SH 82
was evaluated to determine what impacts the modified timing had on the capacity of the highway.
With the previous traffic signal timing a[ the SH 82 Truscott Drive intersection, there was 2,484 seconds
(approximately 41 ~/z minutes) of green time for SH 82 during the PM peak hour. During the previous
timing, [he traffic signal was green for 69 percent of the time during the PM peak hour. The new timing
provides 3,024 seconds (approximately 50'/z minutes) of green time for SH 82 during the PM peak hour.
With the new timing the traffic signal is green for SH 82 for 84 percent of the time during the PM peak
hour.
Traffic volumes on SH 82 at the Truscott Drive intersection were evaluated to determine what volume of
traffic typically can travel westbound on SH 82 during [he PM peak hour. A total of 1,225 vehicles per
hour (vph) were identified as traveling on SH 82 during the PM peak hour. This translates to 1,775
4601 DTC Boulevard, Suite 700, Denver, CO 80237 • (303) 221-7275 (phone) • (303) 221-7276 (/ax)
.~
SH 82/Truscott Drive Signal Timing
May 29, 2008
Page 2 of 2
vehicles per hour of green time (vphg) on SH 82.
The additional green time during the peak hour allows 1,491 vph [o travel westbound on SH 82 through
the Truscott Drive intersection during the PM peak hour. This is an increase of 266 vph compared to the
previous condition. The additional vehicles represent an approximate 22 percent increase in capacity
over previous conditions.
Summary and Conclusions
The revised traffic signal timing a[ [he SH 82/Truscott Drive intersection provides improvements for SH
82 compared to the previous signal timing. As a result of construction activity along SH 82 it was not
possible to effectively measure travel time improvements resulting from the timing changes. Therefore,
capacity improvements were calculated based on existing traffic flows. The calculations indicate the
capacity of SH 82 increased approximately 22 percent as a result of the timing changes. It is desirable
for the City to monitor the intersection during the summer peak to further evaluate the benefits of the
timing improvements and to identify if the timing needs to be modified at all to better accommodate
traffic on Truscot[ Drive which now experiences longer delays because of the increased PM peak traffic
signal cycle length.