FAQ for Section 4(f)

1) Where do you go for information on how to apply Section 4(f) to your federal transportation project?

23 CFR 774, Chapter 20 of SER, FHWA 4[f] Policy Paper [July 20, 2012]

2) What type of transportation projects does Section 4(f) apply to?

The project must need a US DOT approval. If it is a CEQA-only project with no FHWA, FTA or FRA approval, then 4[f] doesn’t apply.

3) What are Section 4(f) resources?

Protected Section 4[f] resources include publicly owned land from a public park, recreation area, or wildlife or waterfowl refuge or historic sites on or eligible for the NRHP [some exceptions apply, e.g., lands from an historic site of local significance if concurred by FHWA].

4) What is a Section 4(f) use?

Use includes permanent incorporation into a transportation facility, constructive use, or a temporary use that does not meet the five criteria for temporary occupancy.

5) Once you have determined that Section 4(f) applies and that there is a “use”, then what is your next step?

Can I make a de minimis finding for my project after considering all avoidance, minimization, and mitigation measures? Do one of the five programmatic evaluations apply to my project?

6) What is a de minimis impact on publicly-owned parks, recreation areas, and wildlife/waterfowl refuges?

De minimis impacts on publicly owned parks, recreation areas, and wildlife and waterfowl refuges are defined as those that do not adversely affect the activities, features, and attributes of the 4[f] resource. When making this determination, it is important to distinguish the activities, features, and attributes of a Section 4[f] resource that are important to protect from those that can be used without adverse effects—for example, playground equipment versus parking facilities.

7) What is a de minimis impact on an historic site?

Section 106 finding of NAE or NHPA

8) What are the documentation requirements for de minimis conclusions?

Provide supporting information for the finding in the NEPA document per the annotated outline. For a CE, prepare a memo to file.
Document and describe the following:

  • Describe Use
  • Why the use is de minimis
  • Public notice process
  • Any avoidance, mitigation and enhancement measures needed to make de minimis finding
  • Written concurrence from official with jurisdiction)

9) Are there any agency coordination or consultation requirements for a de minimis conclusion? If so, what are they?

Official with jurisdiction over the Section 4(f) resource must provide written concurrence. Letter to SHPO must include boiler plate language regarding de minimis conclusion.

10) What, if any, differences are there in the Section 4(f) analysis done for a programmatic versus an individual Section 4(f) evaluation?

No analytical difference, except that when using a programmatic you need to check to make sure the individual criteria for the particular programmatic Section 4(f) being used are met.

11) Are there any procedural differences between programmatic and individual Section 4(f) evaluations?

Yes, programmatic evaluations typically require less time since they do not need to be circulated to DOI [or Dept of Agriculture or HUD, as applicable]. Programmatic evaluations (except the programmatic for net benefits) can not be prepared for EISs. Also, no Caltrans legal sufficiency is required.

12) If a project uses land from a protected Section 4(f) resource, before we can approve that use, what two findings must be made in the Section 4(f) evaluation?

There is no feasible and prudent alternative to the use of the Section 4[f] resource. All measures to minimize harm have been incorporated into the project.

13) What balancing tests need to conducted and documented for Section 4(f) evaluations based on the new requirements enacted in 2008?

Since determining whether an avoidance alterative is feasible is somewhat subjective, 23 CFR 774 provides a balancing test to determine if an alternative is prudent based on 6 factors:

  1. Compromises the project so that it is unreasonable given the purpose and need;
  2. Results in unacceptable safety or operational problems;
  3. After reasonable mitigation, still causes:
    1. Severe social, economic, or environmental impacts;
    2. Severe disruption to established communities;
    3. Severe environmental justice impacts; or
    4. Severe impacts to other federally protected resources
  4. Results in additional construction, maintenance, or operational costs of an extraordinary magnitude;
    1. Consider factors such as: the percentage difference in the costs of the alternatives; how the cost difference relates to the total cost of similar transportation projects in the applicant’s annual budget; and the extent to which the increased cost for the project would adversely impact that applicants’ ability to fund other transportation projects.
  5. Causes other unique problems or unusual factors; or
  6. Involves multiple factors listed above that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.

If there is no feasible and prudent avoidance alternative, 23 CFR 774 provides 7 factors that must be balanced to identify the alternative with the least harm to the Section 4[f] resource:

  1. The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property);
  2. The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection;
  3. The relative significance of each Section 4(f) property;
  4. The views of the official(s) with jurisdiction over each Section 4(f) property;
  5. The degree to which each alternative meets the purpose and need for the project;
  6. After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f); and
  7. Substantial differences in costs among the alternatives
    There is also a quasi-balancing test for the reasonableness of measures to minimize harm.

14) In conducting these balancing tests, can you balance project impacts to Section 4(f) resources against impacts to other environmental resources protected by other federal laws?

Yes

Updated 6/23/15 to reflect the revised date of the 23 CFR 774, Chapter 20 of SER, FHWA 4[f] Policy Paper.