Chapter 20 - Section 4(f)

• What Does This Topic Include?
• Section 4(f) Decision Tree
• Laws, Regulations, and Guidance
• Definition of Terms Used in Section 4(f)
• Determining De Minimis Impacts to Section 4(f) Resources
• Programmatic Section 4(f) Evaluation Procedures
• Consideration of Park and Recreation Properties Funded under Section 6(f) of the Land and Water Conservation Fund Act
• Interagency Coordination
  • Early Coordination
  • Federal Highway Administration - Washington D.C.
  • Determining the Significance of Section 4(f) Resource and Other Coordination with Official with Jurisdiction
    • Department of the Interior
    • Department of Agriculture
    • Department of Housing and Urban Development
    • State Historic Preservation Officer
    • Advisory Council on Historic Preservation
• Balancing Tests
  • Feasible and Prudent Avoidance Alternative
  • Selecting the Alternative with the Least Overall Harm
• Reporting
  • The Technical Report: Section 4(f) Evaluation
  • Section 4(f) Evaluation Processing and Approval
  • Preparer Qualifications
  • Processing and Approval
  • Distribution List for Draft Section 4(f) Evaluations
  • Information for the Environmental Document
• Construction Impacts
• Information Needed for Project Delivery
  • Regional Transportation Plan
  • Project Initiation Document
  • Draft Project Report
  • Project Report
• Permits Required

What Does This Topic Include?

This chapter discusses the application and requirements of Section 4(f) of the Department of Transportation Act (49 USC 303). Responsibility for compliance with Section 4(f) have been assigned to the Department pursuant to the NEPA Assignment (23 USC 327) and CE Assignment (23 USC 326) MOUs (see SER, Volume 1, Chapter 38 for additional details regarding NEPA Assignment). Section 4(f) properties include:

• Publicly-Owned Public Parks, Recreational Areas, or Wildlife or Waterfowl Refuges
• Historic sites on or eligible for the National Register of Historic Places and archaeological sites on or eligible for the National Register of Historic Places and which warrant preservation in place as determined by the Department and the official(s) with jurisdiction.

Parks and recreation areas must be open to the entire public during its hours of operation. Section 4(f) can apply to publicly-owned school playgrounds or publicly-owned fairgrounds under certain circumstances. After consultation (and in the absence of an official designation of purpose or function by the officials having jurisdiction), the Department will base its decision on its own examination of the actual functions that exist. Section 4(f) applies to those portions of federally designated Wild and Scenic Rivers that are otherwise eligible as historic sites, or that are publicly owned and function as, or are designated in a management plan as, a significant park, recreation area, or wildlife and waterfowl refuge (See SER Chapter 19 and FHWA guidance).

This section also addresses conversion of park and recreational properties funded wholly or in part under Section 6(f) of the Land and Water Conservation Fund Act (L&WCFA).

Section 4(f) Decision Tree 

View Section 4(f) Decision Tree (PDF)

Laws, Regulations, and Guidance

See Also Chapter 1 - Federal Requirements

• 49 USC § 303: Section 4(f) of the Department of Transportation Act of 1966 as amended
• 23 USC § 138: Preservation of Parklands
• 16 USC § 460l – 8(f) Land and Water Conservation Fund Act [PL 88-578] (Note: 460"l" is lower case "L". Section was re-numbered from original 6(f))
• 23 CFR 774 - Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites (Section 4(f))
• Section 4(f) Policy Paper (FHWA), July 20, 2012
• FHWA Section 4(f) Nationwide Programmatics:
  • Independent Bikeway or Walkway Construction Projects, May 23, 1977
  • FHWA Projects that Necessitate the Use of Historic Bridges, July 5, 1983
  • Federally-aided Highway Projects with Minor Involvements with Historic Sites, December 23, 1986
  • Federally-aided Highway Projects with Minor Involvements with Public Parks, Recreation Lands, and Wildlife and Waterfowl Refuges, December 23, 1986
  • Section 4(f) Evaluation and Approval for Transportation Projects That Have a Net Benefit to a Section 4(f) Property, April 20, 2005
• Back to the Basics: Section 4(f) & 23 CFR 774 Updates
• FHWA Environmental Review Toolkit, Section 4(f)
• 36 CFR 59.3 Land and Water Conservation Fund Program of Assistance to States; Post-Completion Compliance Responsibilities

Definition of Terms Used in Section 4(f)

"De Minimis Impact"

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.

"USDOT Action"

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.

"No Feasible And Prudent Avoidance Alternative"

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.

"Feasible"

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

"Prudent"

For an alternative to be considered Not Prudent, "it compromises the project to a degree that it 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 extraordinary magnitude; it causes other unique problems or unusual factors; or it involves multiple factors (in this definition) that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude. "

"Section 4(f) Resources"

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 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, and has minimal value for preservation in place, 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 (PDF).

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

"Use"

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.

"Actual Use"

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):

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.

"Temporary Occupancy"

Special consideration is also given to the temporary occupancy of 4(f) land. If the following five conditions set forth in 23 CFR 774.13(d) 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"

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 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),
• There 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"

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 NEPA Assignment (23 USC 327) and CE Assignment (23 USC 326) MOUs. If constructive use is a potential issue for a project, consult with the HQ District Environmental Coordinator assigned to the region/district. Department district/region staff will forward the document to the HQ District Environmental Coordinator, who will in turn forward it to Washington DC.

Determining De Minimis Impacts to Section 4(f) Resources

SAFETEA-LU Section 6009(a) amended 49 USC 303 and 23 USC 138 to allow the USDOT to determine that certain uses of 4(f) land will have only de minimis impacts on a protected Section 4(f) resource. When this is the case, and the responsible official with jurisdiction over the resource agrees in writing, the 4(f) process is now simplified. When the Department determines that a transportation use of Section 4(f) property, after consideration of any impact avoidance, minimization, and mitigation or enhancement measures, results in a de minimis impact on that property, no further Section 4(f) evaluation is required. The Department district/region Senior Environmental Planner is authorized to approve de minimis findings. The district/region is strongly encouraged to request the input of their HQ District Environmental Coordinator in completing these evaluations.

De minimis impact findings must be made for the individual 4(f) resources when there are multiple resources present on a property. De minimis impact criteria and associated determination requirements are different for historic sites than for parks, recreation areas, and wildlife and waterfowl refuges.

De minimis impact findings are made in the Section 4(f) Appendix of the environmental assessment or environmental impact statement. If a publicly circulated environmental document is not prepared for a project, then the De minimis impact findings are documented in a memo to file, which must include the information required in the NEPA Assignment Tracking Worksheet for Section 4(f) de minimis finding.

• Applicability of Section 4(f) to the park, recreation, refuge or historic property proposed to be used by the project.
• A description of the use of the 4(f) property.
• An explanation of why the use is de minimis.
• Records of public involvement, or Section 106 consultation.
• Any avoidance, minimization, and/or mitigation, measures that were relied upon to make the de minimis finding.
• Results of coordination with the official(s) with jurisdiction including the written concurrence from official(s) with jurisdiction.

Historic Properties

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. With the Programmatic Agreement in place for Section 106, the Department 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. No separate noticing or public review is required.

Publicly-owned Parks, Recreation Areas, and Wildlife and Waterfowl Refuges

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, or attributes of the 4(f) resource. The public must be afforded the opportunity to review and comment on the effects of the project on the identified 4(f) resource(s). After the public comment period, the official(s) with jurisdiction over the property must provide written concurrence that the project will not adversely affect the activities, features, or attributes that qualify the property for protection under 4(f). When identifying de minimis impacts on publicly owned parks, recreation areas, and wildlife and waterfowl refuges, it's important to distinguish the activities, features, or 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.

Avoidance, Minimization, and Mitigation or Enhancement Measures

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.

Not for Constructive Use

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 or attributes would be substantially impaired. A de minimis finding can sometimes 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.

The Department Makes the Determination

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.

Public Notice Required

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.

Programmatic Section 4(f) Evaluation Procedures

The Federal Highway Administration developed five nationwide programmatic evaluations for Section 4(f) properties that may be used only for projects designed to improve operational characteristics, safety and/or the physical condition of an existing highway on essentially the same alignment (i.e. the 4(f) lands must be located adjacent to the existing highway). The five types of programmatic evaluations are:

• Minor Involvements with Parklands, Recreation Lands, and Wildlife and Waterfowl Refuges
• Minor Involvements with Historic Sites
• Historic Bridges
• Bikeways and Walkways
• Net Benefit

Each of the five programmatic evaluations has its own applicability criteria, alternatives, findings and coordination requirements; detailed information regarding each of the five programmatic evaluations can be found on the FHWA Section 4(f) website. The advantage of using a programmatic evaluation is that there is no requirement to circulate the evaluation to the Department of the Interior, the Department of Agriculture or the Department of Housing and Urban Development. There is also no need for a legal sufficiency review. However, coordination with the official with jurisdiction over the Section 4(f) property is required. An annotated outline has been developed for use in preparing a Programmatic Section 4(f) Evaluation. Complete Section 4(f) documentation shall be retained in the project file as a matter of public record. The District/Region Senior Environmental Planner is authorized to approve programmatic Section 4(f) evaluations. The District/Region is strongly encouraged to request the input of their HQ District Environmental Coordinator in completing these evaluations.

Consideration of Park and Recreational Properties Funded Under Section 6(f) of The Land and Water Conservation Fund Act

 

State and local governments often obtain grants through the Land and Water Conservation Fund Act to acquire or make improvements to parks and recreational areas. Section 6(f) of this Act prohibits the conversion of property acquired or developed with these grants to a non recreational purpose without the approval of Department of Interior's (DOI) National Park Service. Section 6(f) directs DOI to assure that replacement lands of equal value, location and usefulness are provided as conditions to such conversions. Consequently, where conversions of Section 6(f) lands are proposed for highway projects, replacements will be necessary.

In order to determine whether Land and Water Conservation Fund (L&WCF) funds were involved in the acquisition or improvement of a 4(f) property, the park authority having jurisdiction over the property should be interviewed. If L&WCF funds were utilized for acquisition or improvement, the following prerequisites must be met:

• All practical alternatives to the proposed conversion must be evaluated
• The fair market value of the property to be converted must be established
• The replacement property must be of at least equal value
• The replacement property must be of reasonably equivalent usefulness and location to that be converted
• The property proposed for substitution meets the eligibility requirements for L&WCF assisted acquisition
• In the case of assisted sites that are partially rather than wholly converted, the impact of the converted portion on the remainder shall be considered. If such a conversion is approved the unconverted area must remain recreationally viable or be replaced as well
• The National Park Service (NPS) Regional Office is assured that all environmental review requirements related to the proposed project have been met
• The state intergovernmental clearinghouse review procedures have been adhered to if the proposed conversion and substitution constitute significant changes to the original L&WCF project
• The proposed conversion and substitution are in accordance with the Statewide Comprehensive Outdoor Recreation Plan (SCORP) and/or equivalent recreation plans

In order to convert Section 6(f) properties to non recreation uses, the conversion must meet the prerequisites above and be approved by the appropriate NPS Regional Director in writing. The authority with the jurisdiction over the 6(f) property must agree to the conversion and acceptability of the replacement property. The authority must submit a request for conversion to the State Liaison Officer (Chief, Planning and Local Assistance Unit within the Department of Parks and Recreation) who in turn seeks NPS approval of the conversion and proposed acquisition of replacement property. Regardless of the mitigation proposed, the Section 4(f) evaluation and environmental document should document the NPS position relative to Section 6(f) conversion.

Interagency Coordination

Early Coordination

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 or agencies with jurisdiction should be identified at this point and the Department must consult with them regarding the use and Section 4(f) values of the property.

Federal Highway Administration - Washington D.C.

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 Assignment and CE Assignment MOUs.

Determining the Significance of Section 4(f) Resource and Other Coordination with Official with Jurisdiction

Consultation and coordination with the official(s) of the agency or agencies with jurisdiction is a critical step in defining the whether the property is significant for purposes of Section 4(f), for determining use and in developing measures to avoid or minimize harm. The "official with jurisdiction" is defined in 23 CFR 774 as follows:

Official(s) with jurisdiction. (1) In the case of historic properties, the official with jurisdiction is the SHPO for the state wherein the property is located or, if the property is located on tribal land, the THPO. If the property is located on tribal land but the Indian tribe has not assumed the responsibilities of the SHPO as provided for in the National Historic Preservation Act, then a representative designated by such Indian tribe shall be recognized as an official with jurisdiction in addition to the SHPO. When the ACHP is involved in a consultation concerning a property under Section 106 of the NHPA, the ACHP is also an official with jurisdiction over that resource for purposes of this part. When the Section 4(f) property is a National Historic Landmark, the National Park Service is also an official with jurisdiction over that resource for purposes of this part.

(2) In the case of public parks, recreation areas, and wildlife and waterfowl refuges, the official(s) with jurisdiction are the official(s) of the agency or agencies that own or administer the property in question and who are empowered to represent the agency on matters related to the property.

(3) In the case of portions of Wild and Scenic Rivers to which Section 4(f) applies, the official(s) with jurisdiction are the official(s) of the federal agency or agencies that own or administer the affected portion of the river corridor in question. For state administered, federally designated rivers (section 2(a)(ii) of the Wild and Scenic Rivers Act, 16 USC 1273(a)(ii)), the officials with jurisdiction include both the state agency designated by the respective Governor and the Secretary of the Interior.

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, USDA, 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.

Prior to making Section 4(f) approvals under §774.3(a), the Section 4(f) evaluation must be provided for coordination and comment to the official(s) with jurisdiction over the Section 4(f) resource and to the Department of the Interior, and as appropriate to the Department of Agriculture and the Department of Housing and Urban Development. A minimum of 45 days for receipt of comments is mandated in the regulation. If comments are not received within 15 days after the comment deadline, a lack of objection may be assumed and the action may proceed.

The significance of the potential Section 4(f) property is determined by the official with jurisdiction over that property. Significance is discussed in 23 CFR 774.11 and its determination varies on the type of Section 4(f) property in question. 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. If a determination from the official with jurisdiction cannot be obtained, and a management plan is not available or does not address the significance of the potential 4(f) property, it will be presumed to be significant until the Department reviews the determination and reaches a different conclusion. All determinations, whether stated or presumed, are subject to review by the Department for reasonableness. The significance determination letter from the official with jurisdiction must be included in the Section 4(f) Evaluation.

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 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) Evaluation 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.

Department of Agriculture

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 official 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) Evaluation procedures.

Department of Housing and Urban Development

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) Evaluation procedures.

State Historic Preservation Officer

Regarding historical sites:

The Department, 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, 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)].

Note that the Department has a Programmatic Agreement for Section 106 and an associated addendum for Section 106 compliance which streamlines many of the consultation requirements.

Advisory Council on Historic Preservation

Regarding archaeological sites:

The Department, 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)].

Note that the Department has a Programmatic Agreement for Section 106 and associated addenda for Section 106 compliance which streamlines many of the consultation requirements.

Balancing Tests

Feasible and Prudent Avoidance Alternative

If the project uses a Section 4(f) resource and the use in not de minimis or does not qualify for a Programmatic Section 4(f) Evaluation, then 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. The following is the text from 23 CFR 774.17:

1. A feasible and prudent avoidance alternative avoids using 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. In assessing the importance of protecting the Section 4(f) property, it is appropriate to consider the relative value of the resource to the preservation purpose of the statute.
2. An alternative is not feasible if it cannot be built as a matter of sound engineering judgment.
3. An alternative is not prudent if:
   1. It compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need;
   2. It results in unacceptable safety or operational problems;
   3. After reasonable mitigation, it still causes:
      1. Severe social, economic, or environmental impacts;
      2. Severe disruption to established communities;
      3. Severe disproportionate impacts to minority or low income populations; or
      4. Severe impacts to environmental resources protected under other federal statutes;
   4. It results in additional construction, maintenance, or operational costs of an extraordinary magnitude;
   5. It causes other unique problems or unusual factors; or
   6. It involves multiple factors in paragraphs (3)(i) through (3)(v) of this definition, 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 as assigned) may only select the alternative with the least overall harm. 23 CFR 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. 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].

Reporting

This section has been updated to reflect NEPA Assignment and CE Assignment. For a separate discussion of the assignment of Section 4(f) responsibilities, please see SER, Volume 1, Chapter 38 - NEPA Assignment.

The Technical Report: Section 4(f) Evaluation

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 under NEPA Assignment and CE Assignment, the Section 4(f) Evaluation is prepared as a separate document and reviewed, approved, and circulated by the Department. Any draft individual Section 4(f) evaluation must be reviewed and recommended for signature by the appropriate HQ District Environmental Coordinator and Legal Office. The Deputy District Director or designee then signs and approves the individual Section 4(f) evaluation. Any final individual Section 4(f) evaluation must be reviewed and recommended for signature by the appropriate HQ District Environmental Coordinator. The appropriate Legal Office must provide Legal Sufficiency. 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 Outlines/Re-Validation Form for the structure and content of the Section 4(f) Evaluation.

For projects that are not assigned to the Department by FHWA, approval and circulation is completed by FHWA.

Section 4(f) Evaluation Processing and Approval

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

Preparer Qualifications

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.

Processing and Approval

Please see SER, Volume 1, Chapter 38 - NEPA Assignment for Section 4(f) review and approval procedures under NEPA Assignment. 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 an 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 NEPA Assignment and CE Assignment.  The Department district/region 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) Evaluation, the Programmatic Section 4(f) Evaluation is prepared as part of the EA or EIS or as a separate document for a CE. An annotated outline on Forms and Templates has been developed for use in preparing a Programmatic Section 4(f) Evaluation. Please see SER, Volume 1, Chapter 38 - NEPA Assignment for Section 4(f) review and approval procedures under NEPA Assignment. The 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.

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 - NEPA Assignment for Section 4(f) review and approval procedures under NEPA Assignment.