Parks, Recreation Areas, Wildlife/Waterfowl Refuges, and Historic Sites Final Rule


Printer Friendly Number 2008-15
03-14-08

Please click here for the PDF version.

Pursuant to Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) Section 6009, the Section 4(f) Final Rule, 23 CFR part 774, was published in the Federal Register March 12, 2008, and is available at http://edocket.access.gpo.gov/2008/pdf/E8-4596.pdf.

The effective date of the regulation is April 11, 2008.

The final rule modifies the procedures for granting Section 4(f) approvals by:

1. Clarifying the factors to consider and standards to apply when determining if an alternative for avoiding the use of a Section 4(f) property is feasible and prudent;
2. Clarifying the factors to consider when selecting an alternative in situations where all alternatives would use some Section 4(f) property;
3. Establishing in regulation procedures for determining that the use of a Section 4(f) property has a de minimis impact on the property; (the de minimis impact procedures are consistent with non-regulatory guidance on the same subject previously released);
4. Defining more clearly what is meant by "all possible planning to minimize harm" to a section 4(f) property;
5. Updating the regulation to recognize statutory and common-sense exceptions for uses that advance Section 4(f)’s preservation purpose, as well as the option of applying a programmatic Section 4(f) evaluation;
6. Moving the Section 4(f) regulation out of 23 CFR 771.135 to its own separate part at 23 CFR part 774 with a reorganized structure that should be easier to use.

Section 4(f) approvals signed after the April 11th effective date should address, as appropriate, the feasibility and prudence of possible avoidance alternatives by balancing the factors in 774.17, the determination of the least harm alternative using the factors in 774.3(c), and all possible planning to minimize harm as defined in 774.17. The Federal Highway Administration (FHWA) Office of Chief Counsel has identified these three areas as having a high risk of litigation.

The attached Section 4(f) Final Rule Fact Sheet, prepared by FHWA, may be helpful in familiarizing yourself with 23 CFR part 774.

If you have any questions on the new regulation, please Region 10’s Linda Gehrke at 206-220-4463, email linda.gehrke@dot.gov.

Sincerely,

/s/ Linda Gehrke for


R.F. Krochalis
Regional Administrator

Enclosure: Section 4(f) Final Rule Fact Sheet