1、Complying with Section 4(f) of the U.S. DOT ActAASHTO PrAcTiTiOnerS HAndbOOkThe Center for Environmental Excellence by AASHTO produces the Practitioners Handbooks. The handbooks provide practical advice on a range of environmental issues that arise during the planning, development, and operation of
2、transportation projects. Each handbook is developed by the Center in cooperation with an advisory group that includes representatives of the Federal Highway Administration (FHWA), the Federal Transit Administration (FTA), State departments of transportation, and other agencies as appropriate. The ha
3、ndbooks are primarily intended for use by project managers and others who are responsible for coordinating compliance with a wide range of regulatory requirements. With their needs in mind, each handbook includes: A background briefing; Key issues to consider; and Practical tips for achieving compli
4、ance.In addition, key regulations, guidance materials, and sample documents for each Handbook are posted on the Centers web site at http:/environment.transportation.orgcOmPlying wiTH SecTiOn 4(f) Of THe U.S. dOT AcTThis handbook is intended to assist practitioners in managing all aspects of complian
5、ce with Section 4(f) of the U.S. Department of Transportation Act. Section 4(f) is a Federal law that protects public parks, recreation areas, wildlife and waterfowl refuges, and significant historic sites.Issues covered in this handbook include: Considering Section 4(f) before the NEPA process begi
6、ns; Scoping potential Section 4(f) issues; Identifying and evaluating Section 4(f) properties; Making determinations of de minimis impact; Determining whether there is a “use” of Section 4(f) properties; Developing and evaluating avoidance alternatives under the “feasible and prudent” standard; Choo
7、sing among alternatives that use Section 4(f) properties; Incorporating “all possible planning” to minimize harm to Sec-tion 4(f) properties; Using Section 4(f) programmatic evaluations; Coordinating with other agencies and stakeholders; and Documenting Section 4(f) analysis and conclusions.American
8、 Association of State Highway and Transportation Officials11May 2009Center for Environmental Excellence by AASHTO Using the Transportation Planning Process to Support the NEPA ProcessCopyright 2009, Center for Environmental Excellence by AASHTO (American Association of State Highway and Transportati
9、on Officials). All Rights Reserved. This book, or parts thereof, may not be reproduced in any form without written permission of the publisher. Printed in the United States of America.This material is based upon work supported by the Federal Highway Administration under Cooperative Agreement No. DTF
10、H61-07-H-00019. Any opinions, findings, and conclusions or recommendations expressed in this publication are those of the Author(s) and do not necessarily reflect the view of the Federal Highway Administration. 2009 by the American Association of State Highway and Transportation Officials. All right
11、s reserved. Duplication is a violation of applicable law.Complying with Section 4(f) of the U.S. DOT ActSection 4(f) was enacted in 1966 as part of the U.S. Department of Transportation (U.S. DOT) Act, which established the U.S. DOT. It is now codified in 49 U.S.C. 303(c); essentially identical lang
12、uage also appears in 23 C.F.R. 138. Section 4(f) applies to all agencies within U.S. DOT.Section 4(f) protects significant publicly owned public parks, recreation areas, and wildlife and waterfowl refuges, as well as significant historic sites, whether they are publicly or privately owned. Section 4
13、(f) is a key safeguard for these resources, but compliance is often difficult and can become a cause of delay in the environmental review process. It has been described by courts as one of the nations most stringent environmental laws.Under Section 4(f), the term “use” has a specific meaning. A use
14、occurs when a project permanently incorporates land from a Section 4(f) property, even if the amount of land used is very small. In addition, a use can result from a temporary occupancy of land within a Section 4(f) property, if that temporary occupancy meets certain criteria. A use also can result
15、from proximity effectsnoise, visual, etc.that substantially impair the protected features of the property. A use that results from proximity ef-fects is known as a “constructive use.”Historically, Section 4(f) has prohibited the U.S. DOT from approving the “use” of Section 4(f) properties unless U.S
16、. DOT makes two findings: 1) that there is no feasible and prudent alternative that avoids the use of Section 4(f) properties, and 2) that the project incorporates all possible planning to minimize the harm that results from the use of those resources. Section 4(f) requires the U.S. DOT to seek comm
17、ents from the U.S. Department of the Interior (and in some cases other agencies) before making these findings. In 2005, as part of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Congress amended Section 4(f) to provide an alternative method of
18、approving the use of protected resources where the impact is de minimis. The de minimis impact determination provides the basis for U.S. DOT to approve the minor use of a Section 4(f) property without identifying and evaluating avoidance alternativesthus streamlining the approval process.In SAFETEA-
19、LU, Congress also directed U.S. DOT to revise its Section 4(f) regulations to clarify the application of the “feasible and prudent” standard. In March 2008, FHWA and FTA complied with this requirement by issuing new Section 4(f) regulations. The revised regulations clarified the “feasible and pruden
20、t” standard and also updated many other aspects of the regulations, including the standards for choosing among alternatives that all use Section 4(f) propertiescommonly known as the “least overall harm” test. The new regulations were also codified, for the first time, in a stand-alone section of the
21、 regulations23 C.F.R. Part 774. These recent legislative and regulatory changes present new opportunities to streamline the Section 4(f) decision-making pro-cess. But they also contain new definitions and new legal standards that must be carefully considered when preparing Section 4(f) documentation
22、. This handbook is intended to help practitioners take advantage of the flexibility afforded by the recent changes to Section 4(f) while ensuring that all requirements are met. It addresses the full range of Section 4(f) compliance options, including individual Section 4(f) evaluations, de minimis i
23、mpact determinations, and programmatic Section 4(f) evaluations.Overview 2009 by the American Association of State Highway and Transportation Officials. All rights reserved. Duplication is a violation of applicable law. Complying with Section 4(f) of the U.S. DOT Actbackground briefingApplies Only t
24、o U.S. DOT. Section 4(f) applies to all agencies within the U.S. DOT, including FHWA and FTA. Transportation projects that do not require the approval of a U.S. DOT agency are not subject to the requirements of Section 4(f). For example, many highway projects are implemented with state or local fund
25、s and do not involve changes to Interstate access points or other approval or involvement sufficient to constitute FHWA or FTA “control” over the project. Section 4(f) does not apply to these projects.Protects Parks, Recreation Areas, Refuges, and Historic Sites. Section 4(f) applies to two categori
26、es of resources: 1) publicly owned public parks, recreation areas, and wildlife or waterfowl refuges; and 2) significant historic sites, regardless of whether they are publicly or privately owned. The Section 4(f) regulations have clarified several key points regarding the types of resources that ar
27、e protected by Section 4(f), such as their application to “multiple-use” lands and archeological sites. The FHWAs Section 4(f) Policy Paper, which FTA also follows, provides additional direction regarding a long list of specific resource types, including historic roads, recreational trails, school p
28、laygrounds, fairgrounds, golf courses, water bodies, bikeways, cem-eteries, zoos, and tribal lands. Substantive Protection, Not Just Procedural. Many environmental laws, including the National Environmental Policy Act (NEPA), are procedural: that is, they establish procedures that must be followed b
29、efore a decision is made. Section 4(f) is differ-ent: it actually prohibits certain types of decisions from being made at all. This type of law is known as a substantive requirement because it focuses on the substance of an agencys decision and includes an obligation to make a specific finding or de
30、termina-tion. Substantive laws can block an agency from taking an action, regardless of how thoroughly the action has been studied.Four Paths to Compliance. In general, there are four possible paths to compliance with Section 4(f) for a transportation project that requires FHWA or FTA approval:Findi
31、ng of No Use. FHWA or FTA can determine that the project will not use any Section 4(f) properties. In some cases, this finding is straightforward and requires little if any documentation. In others, a finding of “no use” requires detailed analysis to determine whether Section 4(f) applies to a prope
32、rty and/or whether the project will use that prop-erty. This analysis should be included in the project file and summarized in the NEPA document. De Minimis Impact Determination. FHWA or FTA can determine that the projects impacts on one or more Section 4(f) properties will be de minimis. A de minim
33、is impact determination is not an exemption from Section 4(f); it is an authori-zation for a minor use of a Section 4(f) property, without having to make a finding that there are no feasible and prudent avoidance alternatives. A de minimis impact determination is made on a property-by-property basis
34、, not for a project as a whole. Therefore, several separate de minimis impact determinations could be made for a single project.Reliance on a Programmatic Evaluation. FHWA has issued five programmatic evaluations under Section 4(f); FTA has issued none. In general, programmatic evaluations are inten
35、ded to be used for projects with relatively minor im-pacts to Section 4(f) properties. FHWA can apply a programmatic evaluation to an individual project without some of the process steps required for an individual Section 4(f) evaluation: a legal sufficiency review is not required, nor is there a ne
36、ed for 45-day review by the U.S. Department of the Interior. Therefore, the Section 4(f) approval usually can be granted more quickly with a programmatic evaluation than with an individual evaluation. Individual Section 4(f) Evaluation. FHWA and FTA can complete an individual Section 4(f) evaluation
37、, which autho-rizes the use of one or more Section 4(f) properties. A Section 4(f) evaluation requires legal sufficiency review by the agencys legal counsel, and generally is included as a separate chapter or appendix in the projects NEPA document. It must include two findings: 1) that there is no f
38、easible and prudent alternative that completely avoids the use of Sec-tion 4(f) property; and 2) that the project includes all possible planning to minimize harm to the Section 4(f) property resulting from the use.Legal Resources. Compliance with Section 4(f) for highway and transit projects require
39、s familiarity with the statute, regulations, key guidance documents, and programmatic evaluations. These include:Statute. Section 4(f) was enacted as part of the U.S. Department of Transportation Act of 1966, which established the U.S. DOT. The text of that section is now included, as amended, in 49
40、 U.S.C. 303(c); nearly identical language is included 23 U.S.C. 138. There is no significant difference in wording between these sections. The term “Section 4(f)” is commonly used to refer to both 49 U.S.C. 303(c) and 23 U.S.C. 138. 2009 by the American Association of State Highway and Transportatio
41、n Officials. All rights reserved. Duplication is a violation of applicable law.Complying with Section 4(f) of the U.S. DOT ActRegulations. FHWA and FTA have issued joint regulations implementing Section 4(f). For many years, the regulations were included in 23 C.F.R. Part 771, along with policies an
42、d procedures for implementing NEPA during the develop-ment of transportation projects. In March 2008, the Section 4(f) regulations were updated and moved to a stand-alone section. They are now codified at 23 C.F.R. Part 774. Policy Paper. FHWA has issued a Section 4(f) Policy Paper, which provides a
43、dditional guidance on implementing Section 4(f) requirements. The policy paper was last updated in March 2005, before SAFETEA-LU was enacted. The policy paper is issued solely by FHWA. FTA has not adopted the policy paper, but does consider it when special situ-ations arise (such as fairgrounds or s
44、chool yards). The other U.S. DOT modal administrations (e.g., Federal Aviation Administration) have not adopted the FHWA/FTA regulations or the policy paper, but they may consider them as guid-ance in appropriate situations. De Minimis Impacts Guidance. In December 2005, FHWA and FTA issued a joint
45、memorandum, “Guidance for Deter-mining De Minimis Impacts to Section 4(f) Resources.” This memorandum contained a series of questions and answers on the application of de minimis impact criteria (“De minimis FAQs”). Although it was issued prior to the March 2008 regulations, this 2005 guidance memor
46、andum remains in effect. Programmatic Evaluations. FHWA has issued five programmatic evaluations under Section 4(f). These apply to: 1) use of historic bridges, 2) minor involvement with parks, recreation areas, or refuges, 3) minor involvement with historic sites, 4) independent walkway or bikeway
47、construction, and 5) net benefit to the Section 4(f) property. FTA has not is-sued any Section 4(f) programmatic evaluations.Links to all of these legal resource documents are available on the Centers web site, http:/environment.transportation.org in the Practitioners Handbook section under the “Ref
48、erence Materials” for this handbook.key issues to considerThis section lists a series of issues to consider at each stage of preparing the environmental review process for a highway or transit project. This section can be used as a quick reference tool throughout the process, to make sure the right
49、questions are being asked at the right time. The headings in this section correspond to the headings in “Practical Tips” section below. The Practical Tips section contains more in-depth information on each of these topics. Some readers may wish to proceed directly to Practical Tips, and then scan this section afterwards as needed. 1. Before the NEPA Process BeginsIf a transportation planning study is being undertaken, what information is available about Section 4(f) properties in the study area? How will this information be considered?
