Section 4(f) of the Department of Transportation (DOT) Act of 1966 stipulates that the Federal Highway Administration (FHWA) cannot approve the use of land from publicly owned parks, recreational areas, wildlife and waterfowl refuges or historic sites unless there is no feasible and prudent alternative and the action includes all possible planning to minimize harm to the property. The law is now codified at 49 USC 303 and 23 USC 138. FHWA regulations 23 CFR 774 “Part 774—Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites (Section 4(f))” implement the law.
When It Is Required
Any project that has FHWA or Federal Transit Authority (FTA) involvement or funding is subject to Section 4(f). Other federal agencies are not affected by this law. Typically, documentation of 4(f) compliance is included with a NEPA document, because both laws apply when federal funding is involved.
Permit or Approval Process
There is no 4(f) permit. Rather, applicants must demonstrate that the proposed project will not involve a “use” of a 4(f) property. A use is defined in 23 CFR 774.17 as:
(1) When land is permanently incorporated into a transportation facility;
(2) When there is a temporary occupancy of land that is adverse in terms of the statute's preservation purpose as determined by the criteria in §774.13(d); or
(3) When there is a constructive use of a Section 4(f) property as determined by the criteria in §774.15.
A constructive use occurs when the transportation project does not incorporate land from a Section 4(f) property, but the project's proximity impacts are so severe that the protected activities, features, or attributes that qualify the property for protection under Section 4(f) are substantially impaired. Examples of constructive use include noise impacts where quiet is important, or vibration impacts that are strong enough to damage buildings, or an ecological intrusion into a wildlife refuge that substantially diminishes the value of the wildlife habitat.
The law applies to publicly owned (not private or non-profit) parks, recreational areas, or wildlife refuges; but it applies to any historic property. Historic properties are those that are on or eligible for the National Register of Historic Places. There are several exceptions listed in 23 774.13 where 4(f) approval is not required.
If FHWA determines that there is a use or constructive use of a 4(f) resource proposed for the project, a Section 4(f) Evaluation must be prepared. The Section 4(f) Evaluation format established by FHWA includes the following sections:
A description of the proposed project, including a purpose and need statement.
A description of the proposed action.
A description of the 4(f) resource.
Alternatives considered, including alternatives that avoid any 4(f) use.
Impacts of alternatives. Impacts to 4(f) resources are a function of the:
Size of the Section 4(f) resource used,
Location of the Section 4(f) resource used (relative to the entire property),
Severity of the usage, and
Function of the portion of the Section 4(f) resource used.
The evaluation must show that there is no feasible and prudent avoidance alternative. Feasibility refers to constructability, and prudence refers to social or environmental impacts, operational problems, and other potential constraints. “Feasible” and “prudent” are defined in 23 CFR 774.17. The evaluation must also show that the selected alternative causes the “least overall harm”, compared to other alternatives, in terms of:
ability to mitigate impacts,
severity of the harm, after mitigation,
significance of the 4(f) property,
views of the officials who have jurisdiction over the 4(f) resources,
how well the selected alternative meets the purpose and need,
the magnitude of adverse impacts to resources not protected by 4(f), and
The 4(f) evaluation is provided for coordination and comment to the official in charge of the 4(f) resource. There is a 45-day comment period, after which FHWA may proceed. There is no specific duration for 4(f) approvals, but project modifications altering the use of 4(f) property could require a new Section 4(f) approval.
For projects that involve historic resources and have undergone a Section 106 evaluation, if no historic properties are affected or there is no adverse effect to those properties (as determined by the official with jurisdiction), FHWA makes a “De minimis” finding. In such cases, there is no further responsibility to analyze alternatives, and the Section 4(f) process is complete.
Programmatic 4(f) Evaluations
FHWA has issued five nationwide programmatic 4(f) evaluations to streamline 4(f) compliance for certain project types. These are:
Each of these Programmatic Evaluations requires that the project meets certain criteria, and documentation to support those conclusions.
Regulatory programs with overlapping jurisdiction with Section 4(f) include, but are not necessarily limited to, the following:
Section 106 of the National Historic Preservation Act: Provides for the preservation of historic resources when any federal action is involved.
Act 250: Criterion 8 of Act 250 requires analysis of impacts to historic sites.
For More Information
Federal Highway Administration
Vermont Division Office
87 State Street
Montpelier, VT 05602
Vermont Division for Historic Preservation
FHWA Section 4(f) guidance