The Section 4(f) process as described in 49 U.S.C 303 states that a special effort must be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. Section 4(f) has been part of Federal law in some form since 1966. In 1983, Section 4(f) of the DOT Act, (49 U.S.C, 1653f) was re-codified as 49 USC 303. Protection of parklands and historic sites, however, is still commonly referred to as the Section 4(f) process. The impacts of projects on historic and cultural resources are also regulated under the Section 106 process.
Section 4(f) applies to all historic sites, but only to publicly owned parks, recreational areas, and wildlife and waterfowl refuges. Any project that affects Section 4(f) land must include a Section (4f) assessment. A transportation program or project requiring the use of such land will be approved only if there is no prudent and feasible alternative to using that land and if the program or project includes all possible planning to minimize harm to the land or resources.
49 U.S.C. 303 does not establish any procedures for preparing Section 4(f) documents, for circulating them, or for coordinating them with other agencies. The Federal Highway Administration (FHWA) has developed administrative procedures for the preparation, circulation and coordination of Section 4(f) documents. These are described in FHWA's Section 4(f) Policy Paper. FTA recommends that the July 12, 2012 Section 4(f) Policy Paper be used as FTA guidance on Section 4(f) matters. The policies and procedures described in the paper are also recommended to be followed by FTA Regional Offices and grant applicants to the extent they apply to projects proposed for FTA funding, per the November 9, 2012 Memorandum from FTA Headquarters office of Planning and Environment to all FTA Regional Administrators.
For projects that may have an effect on Section 4(f) lands the compliance process typically has three steps:
- Determining Significance. For a property to be deemed significant, it must play an important role in meeting the objectives of a community in terms of the availability and functions of recreation, park or wildlife and waterfowl refuge areas. Significance is determined through consultation with the federal, state, or local officials having jurisdiction over the property. Once a property’s significance has been determined, Section 4(f) prohibits both the actual taking of land from the protected property and constructive use of the property – where a project’s proximity to the Section 4(f) resource substantially impairs the normal use of the land.
- Developing Alternatives. Parklands are to be protected unless unusual factors or unique problems are present, or the cost, environmental impacts, or community disruption resulting from proposed alternatives are particularly large. In evaluating an alternative, one must consider whether the alternative uses Section 4(f) property, whether it is prudent and feasible, and to what extent it harms the resource. If several alternatives include the use of land from a Section 4(f) resource, the alternative which is prudent and feasible and that has the least overall impact on the resource, including mitigation measures, must be selected.
- Section 4(f) Evaluation. Whenever Section 4(f) property is used for a project, documentation must be prepared that demonstrates that there are unique problems or unusual factors involved in the use of non-Section 4(f) alternatives, or that the costs and social, economic, and environmental impacts, or community disruption resulting from the alternatives are particularly large. The evaluation must contain the following information, developed by the applicant in cooperation with FTA:
- A description of the proposed action.
- A description of the resource.
- The impacts of each alternative on the resource.
- Alternatives to avoid using the resource.
- Measures to minimize harm.
- Coordination with the agency having jurisdiction over the Section 4(f) property.
Section 4(f) Regulation, 23 CFR Part 774
FTA Memo recommending use of the FHWA Section 4(f) Policy Paper
Establishes a national policy for the protection of public parks, historic sites, and public waterfowl and wildlife refuges.
Guidance on Section (4f) compliance process applicable to mass transportation projects.