1. Section 4(f)

2. What is 4(f)?
Section 4(f) refers to the original section within the U.S. Department of Transportation Act of 1966 which provided for consideration of park and recreation lands, wildlife and waterfowl refuges, and historic sites during transportation project development. The law is now codified in 49 U.S.C. §303 and 23 U.S.C. §138.
Applies only when using USDOT federal funds. Other federal funds are not subject to 4(f) evaluation and rules.
Section 4(f) refers to the original section within the U.S. Department of Transportation Act of 1966 which provided for consideration of park and recreation lands, wildlife and waterfowl refuges, and historic sites during transportation project development. The law, now codified in 49 U.S.C. §303 and 23 U.S.C. §138.
Applies only when using USDOT funds. Other federal funds are not subject to 4(f) evaluation and rules.
There are multiple multi day courses put on by the FHWA and others about Section 4(f). This presentation is intended to introduce you to the concept and to familiarize you with the terminology used in the section 4(f) processes. We hope to answer the question—”Why should I care about Section 4(f)?”

3. Why is 4(f) important?
4(f) is a law which has specific requirements that must be met for environmental approval to be granted.
Location of a 4(f) property near your project may influence your preferred alternative.
The 4(f) process has some specific timeframes that may impact your project schedule.

4. How long can it take?
Even if your project is being reviewed as a Categorical Exclusion, 4(f) issues mean that the project has to go to the FHWA for approval. They have up to 30 days to review.
Depending on the type of 4(f) impact plan from one to six months or more added to your schedule. If there is an archeological issue, it may be longer to get the work done in the appropriate season.

5. What is considered a 4(f) property?
Section 4(f) properties include significant publicly owned parks, recreation areas, and wildlife or waterfowl refuges,
Or any publicly or privately owned historic site listed or eligible for listing on the National Register of Historic Places.
This may seem pretty straight forward.
Section 4(f) properties include significant publicly owned public parks, recreation areas, and wildlife or waterfowl refuges.
Or any publicly or privately owned historic site listed or eligible for listing on the National Register of Historic Places.
This may seem pretty straight forward. But 4(f) is the most common issue that the FHWA is sued over.

6. Park criteria Publically owned Open to the public
Major purpose of the property must be park, recreational or refuge activities
Must be significant as a park, recreational area or refuge
These criteria are reviewed by the Official with Jurisdiction (OWJ) over the property and the FHWA. If any of the criteria is not met, the property is not a 4(f)
To be considered a 4(f) park property the following must all be true.
The property must be publicly owned. It must be open to the public (entrance fees may be charged). The major purpose of the property must be for use as a park, recreational area or refuge activities. It must be significant as a park, recreation area or wildlife refuge.
The significance is in meeting parks or recreation objectives as determined by the Official with Jurisdiction (though if the OWJ were to determine that a property was not significant, that would need to be a persuasive finding to FHWA).
A municipal golf course that is open to the public, but run by a private organization could still be considered a 4(f) resource. A golf course owned by a private group would not be a 4(f) resource even if it was open to the public. In determining 4(f) eligibility of a park, ownership and operating agreements can become extremely important.

7. Other park properties that may be 4(f)
Wildlife Management Areas
School Playgrounds
Fairgrounds
Public Multiple Use Land Holdings
Wild & Scenic Rivers
Bodies of Water
Planned Facilities
Bikeways
Trails
The previous criteria needs to be looked at for other parcels in the project area that would appear to have recreational value or are classified as “recreational areas.”
Property owned by a government agency that was purchased for a transportation use in the future. Is not a park even if the residents of the area consider it one. The official designation and use is important.
Wildlife Management Areas -
School Playgrounds -
Fairgrounds -
Public Multiple Use Land Holdings -
Wild & Scenic Rivers -
Bodies of Water -
Planned Facilities -
Bikeways -
Trails -

8. Historic criteria Ownership is NOT a factor.
Must be of national, state or local significance.
Must be listed or eligible for listing on the National Registry of Historic Places.
For Historic properties, Ownership is not a factor in determining the property’s status as 4(f) or not. A historic property may be privately or publicly owned. The important criteria is its eligibility for the National Registry of Historic places. The historic value may be only of local significance, but the property may be deemed historic. The determining factor lies more in the opinion of the official with Jurisdiction and the FHWA must justify its decision if it disagrees.

9. Types of historic sites
Historic buildings
Historic transportation facilities
Archeological sites
Traditional cultural places
Historic and archeological districts
Historic trails
Historic battlefields
Historic sites are not limited to structures, but these ae the most common sites.
Transportation facilities can be historic. Most of the railroad corridors in Minnesota are considered historic and become 4(f) properties if impacted by an FHWA transportation project.
Archeological sites. The historic resources may be buried, but if a transportation project proposes to disturb existing ground this may become an issue.
Traditional Cultural properties are most commonly associated with Native American culture, but other groups in Minnesota have met the criteria and impacted proposed transportation facilities.
Some areas are considered historic or Archeological districts. Your project may affect a single building, but that may be enough to trigger a 4(f) issue.
Project in the areas of historic battlefields or trails may conflict with the historic nature of the property.

10. What is a use of 4(f) property?
4(f) becomes an issue when a transportation project needs to use 4(f) property for transportation purposes rather than recreational purposes.
When land is permanently incorporated into a transportation project;
When there is a temporary occupancy of land that is adverse in terms of the statute's preservation purpose;
When there is a constructive use (a project's proximity impacts are so severe that the protected activities, features, or attributes of a property are substantially impaired).
4(f) becomes an issue when a transportation project needs to use 4(f) property for transportation purposes rather than recreational purposes.
We are lucky to have multiple court case histories that help us to define what a use of 4(f) property is.
When land is permanently incorporated into a transportation project; right of way is purchased to widen a roadway or put in a ditch.
When there is a temporary occupancy of land that is adverse in terms of the statute's preservation purpose.
When there is a constructive use (a project's proximity impacts are so severe that the protected activities, features, or attributes of a property are substantially impaired) Substantial impairment occurs only when the protected activities, features or attributes of the resource are substantially diminished.

11. Temporary Occupancy
Temporary Occupancy is use when it is adverse in terms of the preservation purpose of the Section 4(f) resource.
Temporary Occupancy is NOT a Section 4(f) if:
Land use is of short duration
No change in ownership of the land
Scope of the work on the land is minor
There are no temporary or permanent adverse changes to the activities, features, or attributes of the property.
The land is fully restored to a condition at least as good prior to the project impacts.
If all of the following are met then there are no Section 4(f) impacts.
Land use is of short duration. Generally this is considered to be less than the project timeline.
There is no change in ownership of the land. If the property is originally owned by the public and it is purchased for the project. This is a use.
Scope of the work on the land is minor. Such as the storing materials example.
There are no temporary or permanent adverse changes to the activities, features, or attributes of the property.
The land is fully restored to a condition at least as good prior to the project impacts.
OWJ needs to agree that the above conditions are met. IF any of these conditions are not met then there is a use.

12. Example of Temporary Occupancy
The contractor needs to park equipment or store supplies on the 4(f) property during construction of the project. This interferes with the normal use of the property’s recreational features such as reducing the area for guest parking, elimination of a ball field, etc. While the “use” may be only a short time it impacts the intended use of the property.

13. Constructive Use
An indirect impact to a section 4(f) property that effectively acts as a permanent incorporation, it substantially impairs important features activities of attributes of the 4(f) property.
Could be noise, access restrictions, vibration, ecological intrusions or visual impacts.
A constructive use is an indirect impact to a section 4(f) property that effectively acts as a permanent incorporation, it substantially impares important features activities of attributes of the 4(f) property.
Could be noise, access restrictions, vibration, ecological intrusions, or visional impacts.
This means you may not even be purchasing the 4(f) property, but the impacts of the transportation facility on the recreational value of the property are negative.

14. Example of a Constructive Use
Say the 4(f) property has a band shell and offers evening community concerts. Construction of the proposed roadway may just go along the edge of the park property and the road noise inhibits enjoyment of the concerts.
This means you may not even be purchasing the 4(f) property, but the impacts of the transportation facility on the recreational value of the property are negative. Such as building an expressway adjacent to a public amphitheater. Roadway noise could drown out the activities.

15. Historic Section 4(f) is not the same as Section 106
Both Section 106 laws and Historic 4(f) laws deal with project impacts to historic properties. However the terminology used for the official determinations is different and is not equivalent. Both reviews and determinations must occur as they look at different attributes of the properties.
Adverse effect is not necessarily a use.
No adverse effect is not necessarily a no use.
Section 4(f) and Section 106 evaluations can and should be done in parallel timeframes during the NEPA process, but are not necessarily the same. The conclusions reached by one process may be different than the conclusions reached in the other process. going through one process will not cover your evaluation of the other. They are separate and distinct and are used to come to different conclusions on impacts.

16. 4(f) Hierarchy Avoid Minimize Mitigate
Before the establishment of programmatic processes for 4(f) situations, the rule for 4(f) was:
Avoid the 4(f) property if it was and all feasible and prudent.
If avoidance was not feasible/prudent, then minimize the impact to the 4(f) property.
Mitigate to lessen the damage you are doing to the 4(f) property,
Every once in a while what we are proposing to do to the 4(f) property is an enhancement to the property. Adding a turn lane to the roadway to provide safer access into the park property.

17. Feasible and Prudent Avoidance Alternative
Consider the value of the resource verses the cost to protect it.
An alternative is not feasible if it cannot be built as a matter of sound engineering judgement.
An alternative is not prudent if it compromises the project to the point of not meeting the purpose and need. Still causes safety of operational issues. Causes other unique problems or factors.
Feasible and prudent avoidance alternative.
(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: (i) It compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need; (ii) It results in unacceptable safety or operational problems; (iii) After reasonable mitigation, it still causes: (A) Severe social, economic, or environmental impacts; (B) Severe disruption to established communities; (C) Severe disproportionate impacts to minority or low income populations; or (D) Severe impacts to environmental resources protected under other Federal statutes; (iv) It results in additional construction, maintenance, or operational costs of an extraordinary magnitude; (v) It causes other unique problems or unusual factors; or (vi) 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.

18. De minimis impacts Minor in nature.
Results in no adverse effect to the property.
If the project results in a constructive use of the property, then it cannot be a de minimis impact. It would go against the first point of being minor in nature.
A de minimis impact involves the use of Section 4(f) property that is generally minor in nature. A de minimis impact is one that, after taking into account avoidance, minimization, mitigation and enhancement measures, results in no adverse effect to the activities, features, or attributes qualifying a park, recreation area, or refuge for protection under Section 4(f). For historic properties, a de minimis impact is one that results in a Section 106 determination of "no adverse effect" or "no historic properties affected." A de minimis impact determination requires agency coordination with the officials having jurisdiction over the Section 4(f) property and opportunities for public involvement. A de minimis impact determination may not be made when there is a constructive use.

19. Nationwide Programmatic Section 4(f) evaluations
Net benefit
Minor involvement with parks, recreation areas and refuges
Minor involvement with historic sites
Use of historic bridges
Independent bikeway or walkway construction projects
Programmatic agreements are situations that have happened so often that rather than go through the entire 4(f) process, the FHWA has agreed that the impacts are minor and abbreviated processes for review and approval are appropriate. All of the programmatic agreements have different criteria and rules for use. FHWA has a stated policy to try use the de minims process first but the programmatic agreements can be used if the de minimis process does not fit the situation.

20. Individual 4(f) evaluations
Require avoidance alternatives to be discussed
Draft and final 4(f) evaluations
45 day availability for public review
Legal sufficiency review of the final 4(f) evaluation
If a de minimis 4(f) or none of the programmatic 4(f) options are appropriate and avoidance is not prudent/feasible, then an individual 4(f) is required. This process takes quite a bit of documentation and requires a legal sufficiency review. While not impossible, it is not the first option in the 4(f) process because it takes a lot of time and effort to reach an approval.

21. Officials with Jurisdiction (OWJ) for Parks, etc.
Representatives of agencies that own or administer the 4(f) property.
Their position in the agency empowers them to represent the agency and make decisions on the proposed impacts.
Such as the park manager or supervisor.
Officials with Jurisdiction (OWJ) for Parks, recreation areas, and Wildlife management refuges are Representatives of Agencies that own or administer the 4(f) property.
The position of the person in the agency empowers them to represent the agency and make decisions on the proposed impacts. It may be someone who works on the property or it may be his/her supervisor or manager.

22. Officials with Jurisdiction (OWJ) for historic sites
State Historic Preservation Office
Tribal Historic Preservation Officers
Advisory Council on Historic Preservation sometimes (appendix A- 36 CFR, Part 800)
U.S. Department of Interior/National Park Service - National Historic Landmarks
Because Historic sites can be publicly or privately owned. For historic sites the OWJ is more related to the type of historic property it is.
State Historic Preservation Office (SHPO)
Tribal Historic Preservation Officers (THPO)
Advisory Council on Historic Preservation (ACHP)
U.S. Department of Interior (DOI)
National Park Service (NPS)

23. Points to remember
Only FHWA can make the determination on the 4(f) impact.
OWJ is consulted and asked to concur with the FHWA ruling.
Only the FHWA can make the determination on the 4(f) impact. Your job as project proposer is to make your case for the alternative which best meets the needs and intent of the 4(f) law.
OWJ is relied on for information about the property and its significance as part of determining if the property is 4f and they are asked to concur with FHWA’s de minimis determination.
For Programmatic and Individual 4f Evaluation processes, the OWJ is coordinated with but they aren’t formally asked to concur with the determination of no feasible/prudent alternative and measures to minimize harm.

24. Projects with multiple 4(f) properties
Each property is reviewed “independently”
Each use is examined on its own impacts.
May have multiple different types of 4(f) evaluations for a single project.
Sometimes a single project can have multiple 4(f) properties. When is is the case, each property is looked at as an Individual piece. Each is reviewed on its own merits and the impact of the proposed transportation project.
You may have multiple different types of evaluations on a single project. You may have a de minimis for the impact on one property and an individual 4(f) for the impact to another property. Only when the avoidance alternatives for one property effect another property are the section 4(f) properties rated against each other.

25. State Aid involvement in the 4(f) process
The ultimate decision of 4(f) impacts is in the hands of the FHWA.
The project proposer does an evaluation of the project purpose and need and impacts to the 4(f) property. FHWA then concurs or recommends other alternatives.

26. 4(f) is not a cookie cutter process
Very rarely are the evaluations on one property the same as the next.
Each 4(f) property is unique in recreational and historic value to the community.
If you suspect that you may be impacting a 4(f) property with your federally funded project, contact State Aid ASAP.
Issues are usually not insurmountable, but generally take time to work out to a solution.
Section 4(f) is not a one size fits all process. Each property needs to be reviewed and looked at individually. The ownership or rental agreements on one property may be vastly different from another even if owned by the same agency.
Each section 4(f) property will have different recreational and historic values to each member of the community it is in. Certain 4(f) processes have public involvement as part of the process. You may have some who do not value the property and others who do.
If you suspect or are not sure if you are impacting a section 4(f) property with your FHWA funded project contact SALT as soon as possible.
Section 4(f) issues are not insurmountable, but in general it takes time to come to a solution given the complexity of the issues and interests in the properties.

27. Questions?
Lynnette Roshell