Chapter 20 - Section 4(f) and Related Requirements

For the purposes of Section 4(f), a de minimis impact is a minimal impact to a 4(f) resource that is not considered to be adverse. For historic sites, a de minimis impact means that no historic property is affected or that there is a "no adverse effect" finding under 36 CFR Part 800. For parks, recreation areas, and wildlife and waterfowl refuges, a de minimis impact is one that will not adversely affect the qualities or activities that give the property protection under Section 4(f). For more information see the section on Determining De Minimis Impacts to Section 4(f) Resources.

Department of Transportation Act “Section 4(f)” [49 USC § 303] and the Federal-Aid Highway Act [23 USC § 138] require that all administrations under the US Department of Transportation (USDOT) and the Federal Highway Administration, respectively, preserve and protect certain types of resources when approving transportation projects. The two laws are essentially identical and the Section 4(f) evaluation serves to comply with both for Federal-Aid highway projects. Section 4(f) applies whenever a federal (USDOT) action involves the use of a publicly-owned park, recreation area, wildlife or waterfowl refuge, or land from a historic site. Such land may be used for Federal-Aid highway projects only if there is no feasible and prudent alternative and all possible planning has been taken to avoid the use of a 4(f) property or to minimize harm to any 4(f) property affected by the project. Each project proposal must include a 4(f) avoidance alternative which will be subject to the balancing test described below.

A Section 4(f) Evaluation documents the considerations, consultations, and alternative studies supporting the conclusion that there are no feasible and prudent avoidance alternatives to the use of a 4(f) resource and that the proposed action includes all possible planning to minimize harm to the affected resource. As defined in 23 CFR 774, a feasible and prudent avoidance alternative "avoids using any Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property." The regulations consider the relative value of the particular resource in light of the preservation purpose of the statute.

For an alternative to be considered NOT FEASIBLE, "it cannot be built as a matter of sound engineering judgment. ”

For an alternative to be considered NOT PRUDENT, “it compromises the project to a degree that is is unreasonable to proceed with the project in light of its stated purpose and need; it results in unacceptable safety or operation problems; after reasonable mitigation, it still causes: severe social, economic, or environmental impacts; severe disruption to established communities; severe disproportionate impacts to minority or low-income populations; or severe impacts to environmental resources protected under other Federal statutes; it results in additional construction, maintenance, or operational costs of an extrordinary magnitude; it causes other unique problems or unusual factors; or it involves mutliple factors (in this definition) that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude. ”

There are two steps in determining whether Section 4(f) applies to a federal transportation project: 1) the project must involve a resource that is protected by the provisions of Section 4(f), and 2) that there is a “use” of that resource.

Protected resources include publicly-owned land from :

• Public parks;
• Recreational areas of national, state or local significance;
• Wildlife or waterfowl refuges; or
• Lands from a historic site of national, state or local significance.

“Recreational areas” include formal and informal facilities, including after-school public use of school playgrounds and recreational facilities. FHWA has determined that Section 4(f) does not apply to the National Recreational Trails Program.

Section 4(f) can apply to the federal Wild and Scenic River System under certain conditions. Designation under the Wild and Scenic Rivers Act does not in itself invoke Section 4(f) in the absence of the specified 4(f) land use categories. Section 4(f) only applies to those portions of a federally designated Wild and Scenic river that are eligible as a historic site or are designated in a management plan as being a significant park, recreation area, or wildlife and waterfowl refuge.

“Historic sites” mean properties listed on or eligible for inclusion on the National Register of Historic Places. Archaeological sites may be protected under Section 4(f) only if all consulting parties have agreed that the site’s primary value warrants preservation in place. An archaeological site whose value is in the data it contains, whether or not the data are recovered, is not protected by Section 4(f). There are special considerations for treating historic districts under Section 4(f). The Interstate Highway System is not considered to be a historic site under Section 4(f) except for those individual elements of the system specifically identified for 4(f) protection by FHWA. In California, those individual elements are:

• San Francisco-Oakland Bay Bridge (I-80)
• Truckee River Canyon (I-80)
• Glenn Anderson (Century) Freeway (I-105)
• Chicano Park (I-5)
• Pine Valley Creek Bridge (I-8)
• Pit River Bridge (I-5)

For complete information on these individual elements of the Interstate Highway System in California, see Final List of Nationally and Exceptionally Significant Features of the Federal Interstate Highway System in California.

Section 4(f) applies to Transportation Enhancement Activities (TEA) projects.

23 CFR 774.17 defines “use” in three ways:

When land from a Section 4(f) resource is permanently incorporated into a transportation facility or project (actual use);

When there is a temporary occupancy of Section 4(f) resource that does not meet the five criteria of temporary use; and

When there is constructive use of the Section 4(f) resource.

Under Section 4(f)

Actual use is the most common application of Section 4(f). As the term implies, the action involves the actual use of Section 4(f) lands by permanent incorporation of such lands into a transportation facility. There are special applications of the “actual use” type of 4(f):

Programmatic application: in which there is a direct taking of the Section 4(f) land, but the actual use is considered so minor that special considerations and procedures were developed in an attempt to shorten the approval process. (See discussion on Programmatic Section 4(f) Applications.)

Multiple use lands: this type of application refers to lands such as national forests, state forests, Bureau of Land Management lands, etc. When multiple use lands are involved, Section 4(f) will apply only to those portions of such lands which now function as, or are designated in an official management plan as being for significant 4(f) purposes. Section 4(f) applies to the federal Wild and Scenic River System, but only to the portions of the wild and scenic areas which are in fact being used, or designated on an approved land management plan for use, as a park; recreational area; wildlife or waterfowl refuge; or is a historic site. Those specific land uses must apply on the land needed for highway purposes.

Special consideration is also given to the temporary occupancy of 4(f) land. If the following five conditions can be satisfied, Section 4(f) will not apply:

• Duration of occupancy must be temporary, i.e., less than the time needed for construction of the project, and there should be no change in ownership of the land;
• Scope of the work must be minor, i.e., both the nature and magnitude of the changes to the 4(f) resource must be minimal;
• There are no anticipated permanent adverse physical impacts, nor will there be interference with the activities or purposes of the resource, on either a temporary or permanent basis;
• The land being used must be fully restored, i.e., the resource must be returned to a condition which is at least as good as that which existed prior to the project, and
• There must be documented agreement of the appropriate Federal, State, or local officials having jurisdiction over the resource regarding the above conditions.

Constructive use (23 CFR 774.15) involves the evaluation of indirect or “proximity impacts” to a 4(f) resource. No actual use or “take” is involved . A constructive use occurs when the project’s proximity impacts are so severe that the protected activities, features or attributes that qualify the resource for protection under Section 4(f) are “substantially impaired.” Substantial impairment occurs only when the protected activities, features or attributes are substantially diminished by the proposed project.

Constructive use could include a variety of impacts to the resource depending on the reasons that the property is protected under Section 4(f) and the severity of the project impacts on those particular qualities.

FHWA policy has determined that constructive use may occur when:

• The projected noise level increase attributable to the project substantially interferes with the use and enjoyment of a noise-sensitive facility of a resource protected by Section 4(f), such as hearing the performances at an outdoor amphitheater, sleeping in the sleeping area of a campground, enjoyment of a historic site where a quiet setting is a generally recognized feature or attribute of the site’s significance, enjoyment of an urban park where serenity and quiet are significant attributes, or viewing wildlife in an area of a wildlife and waterfowl refuge intended for such viewing. [23CFR 774.15(e)(1)]
• The proximity of the proposed project substantially impairs esthetic features or attributes of a resource protected by Section 4(f), where such features or attributes are considered important contributing elements to the value of the resource. Examples of substantial impairment to visual or esthetic qualities would be the location of a proposed transportation facility in such proximity that it obstructs or eliminates the primary view of an architecturally significant historical building, or substantially detracts from the setting of a park or historic site which derives its value in substantial part due to its setting. [23CFR 774.15(e)(2)]
• The project results in a restriction on access which substantially diminishes the utility of a significant publicly owned park, recreation area, or historic site. [23 CFR 774.15(e)(3)]
• The vibration impact from operation of the project substantially impairs the use of a Section 4(f) resource, such as projected vibration levels that are great enough to physically damage a historic building or substantially diminish the utility of the building, unless the damage is repaired and fully restored consistent with the Secretary of the Interior's Standards for the Treatment of Historic Properties, in other words, the integrity of the contributing features must be returned to a condition that is substantially similar to that prior to the project. [23 CFR 774.15(e)(4)]
• The ecological intrusion of the project substantially diminishes the value of wildlife habitat in a wildlife or waterfowl refuge adjacent to the project substantially interferes with the access to a wildlife or waterfowl refuge, when such access is necessary for established wildlife migration or critical life cycle processes, or substantially reduces the wildlife use of a wildlife and waterfowl refuge. [23 CFR 774.15(e)(5)].

FHWA has determined that a constructive use does not occur when:

• Section 106 compliance for proximity impacts (36 CFR 800.5) resulted in an agreement of "no historic properties affected" or " no adverse effect",
• The projected traffic noise levels of the proposed highway project on noise-sensitive Section 4(f) activities do not exceed the FHWA noise abatement criteria (NAC) described in 23 CFR 772, or if the projected noise levels exceed the NAC but the increase is barely perceptible (3 dBA or less),
• The are proximity impacts, but the location of the transportation project was officially approved before the designation of the Section 4(f) property, except that "potential" historic sites should be treated as historic sites for Section 4(f) purposes. [23 CFR 774.15(f)(4)],
• The combined proximity impacts do not substantially impair the characteristics that qualify the property for protection under Section 4(f),
• The proximity impacts will be mitigated to a condition equivalent or better than prior to the project, as determined by the official with jurisdiction,
• A change to access will not substantially diminish the use of the property, or
• The vibration impacts are mitigated to avoid substantial impairment of protected characteristics of the property.

The analysis should also include likely future conditions to the property if the project was not implemented so that those conditions are not attributed to the project. It is important to note that substantial impairment is a very stringent standard and the finding of constructive use is almost never made.

Proximity impacts must be evaluated for each Section 4(f) property on each project alternative. The impact evaluation shall address the following:

• The facilities, functions, and/or activities potentially affected
• Access
• Visual impacts
• Noise
• Vibration
• Vegetation
• Wildlife
• Air quality
• Water quality

If there are no proximity impacts to Section 4(f) resources, the evaluation must also state that conclusion.

The Draft Section 4(f) Evaluation must address all proximity impacts to determine whether they will substantially impair the qualities of the 4(f) property, resulting in constructive use. The substantial impairment test is applied after consideration of proposed mitigation measures. At a national level, FHWA considers the issue of constructive use very carefully; substantial impairment is a strict standard and constructive use is rarely found. The Washington DC Office of FHWA makes all determinations of constructive use, so close coordination is required to avoid any delays; this remains true under the Section 6004 and Section 6005 (NEPA Pilot Program) MOUs. If constructive use is a potential issue for a project, consult with the HQ District Environmental Coordinator assigned to the region/district. Caltrans district staff will forward the document to the HQ District Environmental Coordinator, who will in turn forward it to Washington DC.

De minimis impacts on historic sites are defined as the determination of either "no adverse effect" or "no historic properties impacted" in compliance with Section 106 regulations, including SHPO's written concurrence and ACHP's written concurrence, when applicable. When a Programmatic Agreement is in place for Section 106, the Department (Caltrans) must inform the SHPO in writing that a non-response for the purposes of a "no adverse affect" or a "no historic properties affected" determination will be treated as the written concurrence for the de minimis determination; to streamline the process this may be combined with the Section 106 PA notification letter to SHPO regarding the finding of effect.

De minimis impacts on publicly owned parks, recreation areas, and wildlife and waterfowl refuges are defined as those that do not adversely affect the activities, features, and attributes of the 4(f) resource. The official(s) with jurisdiction over the property must provide written concurrence that the project will not adversely affect the activities, features, and attributes that qualify the property for protection under 4(f), and the public must be afforded the opportunity to review and comment on the effects of the project on the identified 4(f) resource(s). When identifying de minimis impacts on publicly owned parks, recreation areas, and wildlife and waterfowl refuges, it's important to distinguish the activities, features, and attributes of a Section 4(f) resource that are important to protect from those that can be "used" without adverse effects. For example, when identifying impacts to a public park, portions of the resource, such as playground equipment, should be distinguished from areas such as parking facilities.

The de minimis impact finding is based on the degree or level of impact including any avoidance, minimization, and mitigation or enhancement measures that are included in the project to address the Section 4(f) use. De minimis impact findings must be expressly conditioned upon the implementation of any measures that were relied upon to reduce the impact to a de minimis level.

A de minimis finding cannot be made for a constructive use of a 4(f) property. A constructive use, by definition, involves impacts such that the protected activities, features and attributes would be substantially impaired. A de minimis finding can sometime be made for a temporary occupancy of a 4(f) property, when the project does not already meet the FHWA's temporary occupancy exception criteria.

Local agencies must work with the district/region Senior Environmental Planner to complete the analysis. The Department's Senior Environmental Planner is responsible for making the de minimis impact finding. Consultation with the HQ District Environmental Coordinator is strongly recommended.

In most cases, a separate public review process, with a public notice or opportunity to comment, is not necessary. The information supporting the de minimis impact finding will be included in the NEPA document and the public will be afforded an opportunity to comment during the formal NEPA process. However, for those actions that do not usually require public review and comment, such as reevaluations and categorical exclusions, a public notice and opportunity for review and comment will be needed. For historic properties, the Section 106 consultation process fulfills this requirement; nothing additional is needed.

During the preliminary assessment of the project (the Preliminary Environmental Study (PES) step for local assistance projects or the Preliminary Environmental Analysis Report (PEAR) for projects on the State Highway System), the analyst should conduct a site visit of the project area and/or identify potential Section 4(f) resources through GIS research or other literature/data research. The agency(ies) with jurisdiction should be identified at this point and Caltrans must consult with them regarding the use and Section 4(f) values of the property.

The FHWA Headquarters office makes the decision as to whether there is a constructive use of a Section 4(f) resource; this remains true even under the NEPA Pilot Program (SAFETEA-LU Section 6005) and SAFETEA-LU Section 6004 MOUs.

Consultation and coordination with the official(s) of the agency(ies) with jurisdiction is a critical step in defining the Section 4(f) use and/or significance of the resource as well as in developing measures to avoid or minimize harm. The “agency with jurisdiction” is the agency owning or administering the land and may include cities, counties, school districts, parks districts, state agencies, or various federal agencies. Such coordination is especially important for multiple-use areas (see definition of Section 4(f) resources, above) and recreational areas, such as school playgrounds. Initial contacts with DOI, DOA, or HUD shall take place at the regional level for identification of the uses of the resource, which may involve subordinate agencies such as the National Park Service, the Bureau of Land Management or the appropriate National Forest Supervisor.

The draft Section 4(f) Evaluation must be provided to the official(s) with jurisdiction for coordination and comment. The comment period must be at least 45 days. The regulations provide, however, that if comments from the official(s) with jurisdiction have not been received within 15 days of the close of the comment period, the Administration (Caltrans) may assume there is no objection and proceed with the project. It is highly advisable to notify the official(s) in question that we assume they have no comments or objections.

Significance determinations, on publicly owned land considered to be parks, recreation areas or wildlife and waterfowl refuges are made by the Federal, State, or local officials having jurisdiction over the land. The "officials having jurisdiction" are officials of the agency owning or administering the land. For certain types of 4(f) resources, more than one agency may have jurisdiction or interest in the property.

Except for certain multiple-use land holdings and federally-designated wild and scenic rivers, significance determinations must consider the entire property and not just the portion of the property proposed for use by the project. The meaning of the term "significance", for purposes of Section 4(f), should be explained to the officials having jurisdiction. Significance means that in comparing the availability and function of the park, recreational area or wildlife and waterfowl refuge, with the park, recreation or refuge objectives of the community or authority, the resource in question plays an important role in meeting those objectives. Management plans or other official forms of documentation regarding the land, if available and up-to-date, are important in this determination. If a determination from the official with jurisdiction cannot be obtained, and a management plan is not available or does not address significance of the 4(f) land, it will be presumed to be significant until Caltrans (the Department) reviews the determination and reaches a different conclusion. All determinations, whether stated or presumed, are subject to review by Caltrans for reasonableness. The significance determination letter from the official with jurisdiction must be included in the Section 4(f) Evaluation.

The approved draft Section 4(f) Evaluation shall be provided (as part of the draft EIS, environmental assessment, or in a separate document for projects classified as categorical exclusions) for coordination and comment to the officials having jurisdiction over the Section 4(f) property and to the Department of the Interior, and, as appropriate, to the Department of Agriculture and the Department of Housing and Urban Development (see below). A minimum of 45 days shall be established for the receipt of comments [23 CFR 774.5(a)]. The number of copies of the draft Section 4(f) Evaluation sent to the Department of the Interior is indicated in the table below. The Department of the Interior also receives copies of the final Section 4(f) Evaluation. Department of Interior review of the Section 4(f) Evaluation does not occur when using the Programmatic Section 4(f) Application procedures.

For the purpose of satisfying the requirements of Section 6(f) of the L&WCFA, approval of the proposed conversion and replacement property must be obtained from the appropriate National Park Service Regional Director.

In addition to the Department of the Interior, the approved draft Section 4(f) evaluation shall be provided (as part of the draft EIS, environmental assessment, or in a separate document for projects classified as categorical exclusions) for coordination and comment to the Department of Agriculture when one of its subordinate bureaus is the agency with jurisdiction. A minimum of 45 days shall be established for the receipt of comments [23 CFR 774.5(a)]. Department of Agriculture review of the Section 4(f) Evaluation does not occur when using the Programmatic Section 4(f) Application procedures.

Coordination with HUD shall occur when a project uses land for which or on which HUD funding had been used, except for funding under the Neighborhood Facilities Program or the Open Space Program. The approved draft Section 4(f) evaluation shall be provided (as part of the draft EIS, environmental assessment, or in a separate document for projects classified as categorical exclusions) for coordination and comment to the agency with jurisdiction, the Department of the Interior, and the Department of Housing and Urban Development. A minimum of 45 days shall be established for the receipt of comments [23 CFR 774.5(a)]. Department of Housing and Urban Development review Section 4(f) Evaluation does not occur when using the Programmatic Section 4(f) Application procedures.

Regarding historical sites:

The Department (Caltrans) , in cooperation with the applicant, will consult with the State Historic Preservation Officer and appropriate local officials to identify properties on or eligible for the National Register of Historic Places [23 CFR 774.5 (b)].

Regarding archaeological sites:

The Department (Caltrans), in cooperation with the applicant, will (1) consult with the State Historic Preservation Officer and appropriate local officials to identify archaeological sites on or eligible for the National Register of Historic Places, and (2) if on or eligible, will further consult with the State Historic Preservation Officer and the Advisory Council on Historic Preservation (if ACHP is participating in the consultation) to determine whether the archaeological resource is important chiefly because of what can be learned by data recovery and has minimal value for preservation in place [23 CFR 774.11(f) and 774.13(b)].

Regarding archaeological sites:

The Department (Caltrans), in cooperation with the applicant and the SHPO, will consult with the Advisory Council on Historic Preservation, if the ACHP is participating in the consultation, to determine whether an archaeological resource, listed on or eligible for inclusion in the National Register of Historic Places, is important chiefly because of what can be learned by data recovery and has minimal value for preservation in place [23 CFR 774.11(f) and 774.13(b)].

BALANCING TESTS

Feasible and Prudent Avoidance Alternative

After determining that there is not a de minimis impact and that one of the programmatic Section 4(f) evaluations does not apply, one must determine whether there is a feasible and prudent avoidance alternative to the use of the Section 4(f) property(ies). Feasibility is an engineering test; is it feasible to build the alternative as a matter of sound engineering? Prudency is more subjective; the regulations provide a balancing test to determine whether an avoidance alternative is prudent using six factors. An alternative is not prudent if it:

1. Compromises the project so that it is unreasonable given the purpose and need;
2. Results in unacceptable safety or operational problems;
3. After reasonable mitigation, still causes:
   • Severe social, economic, or environmental impacts;
   • Severe disruption to established communities;
   • Severe environmental justice impacts; or
   • Severe impacts to other federally protected resources
4. Results in additional construction, maintenance, or operational costs of an extraordinary magnitude;
• Consider factors such as:  the percentage difference in the costs of the alternatives; how the cost difference relates to the total cost of similar transportation projects in the applicant’s annual budget; and the extent to which the increased cost for the project would adversely impact that applicants’ ability to fund other transportation projects.       
5. Causes other unique problems or unusual factors; or
6. Involves multiple factors listed above that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.

This test balances the Section 4(f) property (including consideration of its relative value) against the 6 factors.When considering impacts to non-Section 4(f) properties protected by other federal laws, the level of impact used must include all reasonable mitigation.

Document the consideration of the 6 factors above and remember that this analysis puts a “thumb on the scale” in favor of protecting the Section 4(f) property, although the regulations do allow consideration of the relative value of the resource for 4(f) purposes. The No Build alternative must always be included among the avoidance alternatives. The application of the above factors to the No Build alternative will likely result in the conclusion that it does not meet the project purpose and need.

If there is a feasible and prudent avoidance alternative, it MUST be selected and therefore the project will have no Section 4(f) use. It is not necessary to develop an avoidance alternative when the project is found to have a de minimis impact on the Section 4(f) property(ies).

Selecting the Alternative with the Least Overall Harm

If there is no feasible and prudent avoidance alternative to the use of Section 4(f) property, and there is more than one viable alternative, the next step is to identify the alternative with the "least overall harm in light of the statute's preservation purpose". The Administration (Caltrans) may only select the alternative with the least overall harm. Section 774.3(c)(1) provides the factors that must be balanced to identify this alternative:

1. The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property);
2. The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection;
3. The relative significance of each Section 4(f) property;
4. The views of the official(s) with jurisdiction over each Section 4(f) property;
5. The degree to which each alternative meets the purpose and need for the project;
6. After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f); and
7. Substantial differences in costs among the alternatives

This analysis considers all the impacts and circumstances involved and is applied separately to each remaining, viable alternative. When documenting this analysis in the Section 4(f) Evaluation, refer back the balancing test for the avoidance alternative and the No Build. This discussion in the Section 4(f) Evaluation provides the basis for selecting the alternative.

Once the alternative with the least overall harm is selected, then the evaluation must also document all possible planning to minimize harm to the Section 4(f) property(ies) [23 CFR 774.17].

The report for Section 4(f) Properties is the Section 4(f) Evaluation. The Section 4(f) Evaluation is incorporated into an EIS or EA as an appendix in the document. When a Section 4(f) Evaluation is required for a CE, the Section 4(f) Evaluation is prepared as a separate document and reviewed, approved, and circulated by the Department. Any individual Section 4(f) evaluation must be reviewed by the HQ District Environmental Coordinator. The Deputy District Director or designee then signs and approves the individual Section 4(f) evaluation. Programmatic Section 4(f) evaluations and de minimis impact findings can be made by the district/region Senior Environmental Planner; in those cases, consultation with the HQ District Environmental Coordinator is strongly recommended. Please see the appropriate annotated outline for the structure and content of the Section 4(f) Evaluation.

All Section 4(f) Evaluations are reviewed by Caltrans Environmental staff. Please see SER, Volume 1, Chapter 38, Section 4(f) for a separate discussion of Section 4(f) review and approval procedures under NEPA Delegation.

There are no specified qualifications for persons preparing Section 4(f) evaluations .Typically, the Environmental Generalist prepares the Section 4(f) Evaluation. If historic resources, including archaeological resources, are involved, the Generalist works in close coordination with the cultural resources specialists.

The Section 4(f) procedures described in 23 CFR 774 are to be followed when there is Section 4(f) involvement. The regulations added factors that must be applied to the determination of whether there is a feasible and prudent avoidance alternative and other factors to the determination of the alternative with least harm to Section 4(f) properties. See discussion below. Some elements of the FHWA Technical Advisory T6640.8A are still be applicable. In addition to being a good preparation and review guide, the FHWA Western Resource Center’s Section 4(f) Checklist provides further information regarding constructive use and how to approach discussing certain resources are not protected by Section 4(f). All the requirements of the 23 CFR 774 and the relevant elements of the Technical Advisory and Section 4(f) checklist have been incorporated into the Section 4(f) Appendix in the annotated outlines.

Please see SER, Volume 1, Chapter 38, Section 4(f) for Section 4(f) review and approval procedures under NEPA Delegation. Section 4(f) Evaluations that are incorporated into an Environmental Assessment or Environmental Impact Statement are reviewed, approved, and distributed in the same manner as the EA or EIS. Draft environmental documents that incorporate a Section 4(f) Evaluation are distributed to the Department of the Interior, Department of Housing and Urban Development, or the Department of Agriculture in addition to the normal environmental document distribution. When the 4(f) Evaluation is processed with an Environmental Assessment (EA), use the Draft Section 4(f) Distribution List in addition to the normal EA distribution.

Including Section 4(f) Evaluations within environmental documents serves two key purposes:(1) They are subject to essentially the same public review process as a EIS; and (2) Section 4(f) approval will be automatic with approval of the environmental document. In the case of an EIS, the 4(f) approval is summarized in the Record of Decision (ROD).This practice is an excellent example of the benefit to be gained by implementing environmental processes concurrently rather than consecutively.

If there appears to be constructive use of a Section 4(f) resource, then Pre-draft Section 4(f) Evaluation must be reviewed and approved by FHWA Headquarters Office in Washington, DC prior to circulation of the draft environmental document; this is still the case under the Section 6005 and Section 6004 MOUs. Caltrans district staff will forward the document to the HQ District Environmental Coordinator, who will in turn forward it to Washington DC. If FHWA Headquarters approves the determination of constructive use, the draft environmental document shall be processed normally.

If the project qualifies for Programmatic Section 4(f) application, the Section 4(f) Evaluation is prepared as part of the EA or EIS or as a separate document for a CE. The environmental document is reviewed, approved, and processed normally. Please see SER, Volume 1, Chapter 38, Section 4(f) for Section 4(f) review and approval procedures under NEPA Delegation. The only difference is that Programmatic Section (4) Evaluations are not distributed to the Department of the Interior, Department of Housing and Urban Development, or the Department of Agriculture for review.

Local Agencies (for projects OFF the State Highway System):

Processing of technical reports for CEs in the Local Assistance Procedures Manual, Chapter 6, Section 6.6.

When technical studies indicate that the project does not support a CE, the local agency should refer to SER Chapter 31 or 32 for detailed instructions on preparing and processing an EA or an EIS.

Separate Section 4(f) Evaluation (CE or late discovery)

When the project qualifies as a Categorical Exclusion or if the Section 4(f) resource is discovered after circulation of the environmental document, a separate Section 4(f) Evaluation must be prepared. It is reviewed and approved following the same procedures as if it was discovered during the environmental process. Please see SER, Volume 1, Chapter 38, Section 4(f) for Section 4(f) review and approval procedures under NEPA Delegation.

Because the Section 4(f) Evaluation is incorporated into the environmental document as a separate chapter, its conclusions are summarized only in an Executive Summary of the document.

For a CE, a separate Section 4(f) Evaluation is prepared and a brief summary of the conclusions shall be attached to the CE form.

Ideally, the following information should be documented in the Environmental Impact Report prepared for the Regional Transportation Plan and serve as a building block in subsequent decision making.

A Regional Transportation Plan (RTP) requires the preparation of a CEQA environmental document, normally a program or master Environmental Impact Report. Caltrans encourages the MPO/RTPAs to include the following information, as appropriate, in the environmental document for the plan:

• Publicly-owned wildlife/waterfowl refuges in corridor or subarea;
• Publicly-owned public parks and recreation areas in corridor or subarea;
• Public schools in corridor or subarea (for potential after hours recreational use of playgrounds);
• Any known historical resources of national, state, or local significance in corridor or subarea;

The “Guidelines for the Preparation of Project Study Reports” dated November 3, 1999 stipulate that PSRs and project study report equivalents contain an “inventory of environmental resources, identification of potential environmental issues and anticipated environmental processing type. Potential mitigation requirements and associated costs should also be identified. “

For projects off the State Highway System, complete the Preliminary Environmental Assessment (PES) form. The information required for the PES satisfies the environmental requirement for the PSR equivalent.

For projects on the State Highway System, the following level of information should be included in the Preliminary Environmental Analysis Report (PEAR) prepared as part of the Project Initiation Document (PID).

• Verification of all information from the RTP stage and:
• Publicly-owned wildlife/waterfowl refuges in project area;
• Publicly-owned public parks and recreation areas in project area;
• Public schools in project area (for potential after hours recreational use of playgrounds);
• Any known historical resources of national, state, or local significance in project area;
• Any known archaeological sites that may warrant preservation in place as defined by Section 4(f) in project area. Do not disclose site locations in the PEAR or PID. Site locations are confidential.
• Any park or recreation property acquired or improved utilizing L&WCF funds.

This information should be presented in the Draft Environmental Document or used as supporting documentation for a Categorical Exemption, as appropriate.

• Verification of all information from the RTP and PID stages and:
• Description of each Section 4(f) resource on each alternative;
• A detailed map or drawing of sufficient scale to identify the relationship of the alternatives to the Section 4(f) resource;
• The amount of land of each resource required for each alternative;
• The type(s) of Section 4(f) resource(s) involved;
• Ownership of the resource and information on leases, easements, etc.
• The existing and planned facilities, functions or activities that are affected by the project for each Section 4(f) resource;
• Type of public access to the resource;
• Use of the resource;
• Analysis of impacts required to be considered, and, if there is no impact, documentation to support that conclusion (Refer to Content of Section 4(f) Evaluation for the required issues to be analyzed);
• Potential for conversion of Section 6(f) funded park or recreational property for each alternative under consideration;
• Evidence of coordination and consultation with the agency with jurisdiction for each Section 4(f) Resource;
• A build alternative that avoids each Section 4(f) resource or the reasons why such an avoidance alternative is not feasible or prudent.

See Content and Format of a Section 4(f) Evaluation and Section 4(f)Checklist.

This information should be presented in the Final Environmental Document or used as supporting documentation for a Categorical Exemption, as appropriate.

• Verification of all information from the RTP, PID, and DPR stages and:
• Comments received after the circulation of the Draft Section 4(f) Evaluation;
• Adequate responses to comments;
• Documentation that all possible planning has been done to minimize harm to Section 4(f) resources;
• Summary of coordination with Department of the Interior, and as appropriate, the Department of Agriculture or Department of Housing and Urban Development;
• Updated documentation of coordination and consultation with the agency having jurisdiction over the resource;
• Documentation that the preferred alternative has the least net impact on Section 4(f) resources.
• If FHWA Headquarters has determined there is "Constructive Use" include documentation to that effect.
• Documentation that the authority having jurisdiction over the Section 6(f) property agrees with conversion and acceptability of the replacement property;
• Documentation that the NPS Regional Director has approved the conversion of the 6(f) property and replacement
• Identifies commitment to acquire 6(f) replacement property.