History
Section 4(f) has been part of Federal law in some form since 1966. It was enacted as Section 4(f) of the Department of Transportation (DOT) Act of 1966 (hence the reference to "Section 4(f)"). Section 4(f) was originally set forth in Title 49, United States Code (U.S.C.), Section 1653(f), and applies only to agencies within the DOT. Also, in 1966, a similar provision was added to Title 23, U.S.C.s., Section 138. Between 1966 and 1968, the wording in the two provisions was somewhat different. This led to some confusion since Section 4(f) applied to all programs of DOT, whereas Section 138 applied only to the Federal-Aid Highway Program. Consequently, the Federal-Aid Highway Act of 1968,. amended the wording in both sections to be substantially consistent. Except for the last sentence of the second paragraph (which appears only in Section 138) the two sections read:
"It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interiors Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed.In January 1983, as part of an overall recodification of the DOT Act, Section 4(f) was amended and codified in 49 U.S.C.of Section 303. The wording in Section 303 reads as follows:After the effective date of the Federal-Aid Highway Act of 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, States, or local significance as determined by the Federal, State, or local officials having Jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreation areas, wildlife and waterfowl refuge, or historic sites resulting from such use. In carrying out the national policy declared in this Section, the Secretary, in cooperation with the Secretary of the Interior and appropriate State and local officials, is authorized to conduct studies as to the most feasible Federal-aid routes for the movement of motor vehicular traffic through or around national parks so as to best serve the needs of the traveling public while preserving the natural beauty of these areas."
Section 138 was not amended, so the wording in the two sections is once again different. The legislative history of the 1983 recodification indicates that no substantive change was intended. Further, because of familiarity with Section 4(f) by thousands of Federal and State personnel, the Federal Highway Administration (FHWA) continues to refer to the requirements as Section 4(f).
The statute does not establish any procedures for preparing Section 4(f) documents for circulating them, or for coordinating them with other agencies. The statute does not require the preparation of any written document,, but the FHWA has developed procedures for the preparation circulation, and coordination of Section 4(f) documents. The purpose of these procedures is to establish an administrative record of the basis for determining that there is no feasible and prudent alternative, and to obtain informed input from knowledgeable sources on feasible and prudent alternatives and on measures to minimize harm.
Numerous legal decisions on Section 4(f) have resulted in a DOT policy that conclusions on no feasible and prudent alternatives and on all possible planning to minimize harm must be well documented and supported. The Supreme Court in the Overton Park case (Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)) ruled that determinations on no feasible and prudent alternative must find that there are unique problems or unusual factors involved in the use of alternatives or that the cost, environmental impacts, or community disruption resulting from such alternatives reach extraordinary magnitudes.
Purpose of this Paper
Since the enactment of Section 4(f) in 1966, courts have made several interpretations of how this statute should be applied. From these court Interpretations and many years of project-by-project applications, FHWA has developed numerous policy positions on various aspects of the Section 4(f) requirements. This paper presents these various policy positions. This paper addresses only the programs and activities administered by FHWA and serves as a guide for the applicability of Section 4(f) for project situations most often encountered. For specific projects that do not completely fit the situations described in this paper, contact the Regional Office or Washington Headquarters.
Important Points
A few points should be noted at the outset. Section 4(f) applies to all historic sites, but only to publicly owned public parks, recreational areas, and wildlife and waterfowl refuges. When parks, recreational areas, and wildlife and waterfowl refuges are owned by private institutions and individuals, even if such areas are open to the public, Section 4(f) does not apply. The FHWA does however, strongly encourage the preservation of such privately owned lands. If a governmental body has a proprietary interest in the land (such as fee ownership, drainage easements or wetland easement), it can be considered "publicly owned."
When projects are litigated, Section 4(f) has been a frequent issue. Therefore, it is essential that the following are completely documented: (1) the applicability/nonapplicability of Section 4(f); (2) the coordination efforts with the officials) having jurisdiction over or administering the land (relative to significance of the land, primary use of the land, mitigation measures, etc.); (3) the location and design alternatives that would avoid or minimize harm to the Section 4(f) land; and (4) all measures to minimize harm, such as design and landscaping.
There are often concurrent requirements of other Federal agencies when Section 4(f) lands are involved In highway projects. Examples include compatibility determinations for the use of lands in the National Wildlife Refuge System and the National Park System, consistency determinations for the use of public lands managed by the Bureau of Land Management, determinations of direct and adverse effects for Wild and Scenic Rivers under the jurisdiction of such agencies as the U.S. Fish and Wildlife Service, National Park Service, Bureau of Land Management, and Forest Service, and approval of land conversions covered by the Federal-aid in Fish Restoration and the Federal-aid in Wildlife Restoration Acts (the Dingell-Johnson and Pittman-Robertson Acts), the Recreational Demonstration Projects and the Federal Property and Administrative Service (Surplus Property) Acts, and Section 6(f) of the Land and Water Conservation Fund Act. The mitigation plan developed for the project should include measures that would satisfy the requirements for these determinations and for Section 4(f) approval. When Federal lands, which are needed for highway projects are not subject to Section 4(f), there is still a need for close coordination with the Federal agency owning or administering the land in order to develop a mitigation plan that would satisfy any other requirements for a land transfer.
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