Guidance on Section 4(f) Exception for Federal Lands Transportation Facilities

U.S. Department of Transportation Federal Highway Administration

Memorandum

The purpose of this memorandum is to provide guidance related to a Section 4(f) exception for Federal lands transportation facilities. Section 1119(c)(2) of MAP-21 modifies 23 U.S.C. 138(a) as follows:

After the effective date of the Federal-Aid Highway Act of 1968, the Secretary shall not approve any program or project (other than any project for a park road or parkway under section 204 of this title Federal lands transportation facility) which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, 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, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.

"Federal lands transportation facility" is defined in section 1103(a)(3) MAP-21 (23 U.S.C. 101(a)(8)):

(8) FEDERAL LANDS TRANSPORTATION FACILITY.—The term 'Federal lands transportation facility' means a public highway, road, bridge, trail, or transit system that is located on, is adjacent to, or provides access to Federal lands for which title and maintenance responsibility is vested in the Federal Government, and that appears on the national Federal lands transportation facility inventory described in section 203(c).

This provision will be implemented as follows:

• A Section 4(f) approval will not be necessary for any project involving a Federal lands transportation facility that is included in the new comprehensive national inventory of public Federal lands transportation facilities required to be established by MAP-21 (codified in 23 U.S.C. 203(c)). The inventory will include transportation facilities owned and maintained by: (1) the National Park Service; (2) U.S. Fish and Wildlife Service; (3) USDA Forest Service; (4) U.S. Corps of Engineers; or (5) the Bureau of Land Management. These five agencies will establish their individual inventories of such transportation facilities, in cooperation with FHWA, prior to July 15, 2013. The inventories may be updated later.

• The Section 4(f) exception, effective as of October 1, 2012, may be applied to exempt a project from Section 4(f) review and approval when the relevant individual inventory of the appropriate land managing agency is issued. The application of the Section 4(f) exception should be documented in the project file.

• The Section 4(f) exception is not limited to projects funded under any particular FHWA program. The exception applies to any project on a Federal lands transportation facility included on the current inventory that is in effect at the time the project is approved, regardless of the project funding source.

• The Section 4(f) exception does not apply to projects that are on tribal transportation facilities or Federal lands access transportation facilities.

• The Section 4(f) exception does not affect the need to study and mitigate for the impacts of the project pursuant to the National Environmental Policy Act, Section 106 of the National Historic Preservation Act, and other applicable environmental laws.

We look forward to implementing this important MAP-21 provision, which will accelerate our project delivery process while still protecting our valuable public lands. Please contact Terry Haussler at 202-366-9478 if you have any questions.