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Section 4f

Avoidance & Minimization

Avoidance and Minimization
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This portion of the document will acquaint you with three concepts that are fundamental to Section 4(f) :

When you have finished, you should have a basic understanding of the following:

  • The terms avoidance, minimization and mitigation
  • The term feasible and prudent and its relationship to avoidance
  • The term least harm and its relationship to minimization
  • The following rules of thumb:

    • If an avoidance alternative is determined to be feasible and prudent, it must be selected.
    • If no feasible and prudent avoidance alternative exists, the alternative that will cause the least harm must be selected.

Before an alternative involving the use of a Section 4(f) resource can be selected, avoidance alternatives and minimization measures must be considered. Avoidance alternatives are those that avoid the use of Section 4(f) resources; minimization measures are efforts to minimize the impact of a Section 4(f) use.

Minimization measures may include mitigation, which is compensation for Section 4(f) impacts that cannot be avoided. Mitigation usually entails replacement of Section 4(f) property or facilities.

Avoidance alternatives are those that entirely avoid the use of Section 4(f) properties. A key requirement of Section 4(f) compliance is an attempt to show whether or not a property can be completely avoided. When the alternatives under consideration use land from one or more Section 4(f) resources, alternatives that avoid each of the resources must be evaluated.

Alternatives should be within a reasonable proximity to the property and consider the feasibility of minor alignment shifts, reduced cross-sections, retaining structures, modifications to the project and so forth. Avoidance alternatives that are eliminated from detailed study should be discussed in the documentation with a clear explanation of why they are not feasible and prudent.

Note: Care should be taken to demonstrate consistent application of design standards throughout the project. For example, it would make no sense to propose the use of a reduced median width and narrower shoulders to minimize impacts to a non-Section 4(f) wetland, while failing to apply the same logic to protect a Section 4(f) municipal park.

Feasible & Prudent
The most important point to remember in selecting an alternative is this:

If an avoidance alternative is determined to be feasible and prudent, it must be selected.

There is no simple definition of feasible and prudent, but there are some clear guidelines as to what is not feasible and what is not prudent:

  • An alternative is not feasible if it cannot be constructed in accordance with sound engineering principles and practices.
  • An alternative is not prudent if it creates truly unique problems or does not meet the project purpose and need.

Truly unique problems exist when an avoidance alternative creates unusual factors or costs, or community disruption of an extraordinary magnitude. Examples include unacceptable social, economic or environmental impacts; serious community disruption; safety and geometric problems; or excessive construction costs. An accumulation of these problems (as opposed to a single factor) may be a sufficient reason to use a Section 4(f) resource, but only if the problems are truly unique. Excessive cost alone will not necessarily prevent an alternative from being considered prudent.

Determining whether an alternative is feasible and prudent may be viewed as a balancing act that involves coordination between the Department of Transportation (DOT) and the state transportation agency. A determination of an alternative's feasibility and prudence must take into account not only the impacts to Section 4(f) resources, but also the impacts to non-Section 4(f) resources, as well the importance of the project itself.

Furthermore, the impacts (to Section 4[f] and non-Section 4[f] resources) associated with one alternative must be compared to the impacts associated with other alternatives. This process is critical for determining whether an avoidance alternative is feasible and prudent. For example, an avoidance alternative resulting in the displacement of 50 homes may not appear to be feasible and prudent until a comparison reveals that other alternatives that do not avoid Section 4(f) resources result in similar impacts, in which case the community disruption would be relatively equal among the alternatives considered.

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Once it has been determined that no feasible and prudent avoidance alternative exists, minimization efforts should be pursued. Minimization entails measures to reduce the impact to a Section 4(f) resource.

Least Harm
The most important point to remember about mitigation is this:

When no feasible and prudent avoidance alternatives exist, the alternative that will cause the least harm to Section 4(f) resources (after factoring in mitigation measuressee mitigation below) must be selected.

All possible planning to minimize harm should be determined through consultation with the official with jurisdiction. Such minimization measures may include (but are not limited to) the following:

  • minor alignment adjustments or shifts
  • a commitment to off-season construction (no construction on recreational facilities during high use periods)
  • reduction of design speed
  • retaining walls
  • narrowing of typical sections

When considering minimization measures, be sure to note that not all uses of a Section 4(f) resource are necessarily equal. Impacts may vary according to a number of factors, including the following:

These factors determine the level of impact on a resource. Again, the selected alternative must be the one that causes the least harm, the least overall impact.

For example, if one alternative impacts only a small corner of a park and another impacts a much larger area along an entire side of the park, the alternative that impacts only the corner must be selected, all other factors being equal. If one alternative catches the edge of a Section 4(f) property and another bisects it, the one on the edge must be selectedagain, assuming all other factors are equal. If several small portions of a Section 4(f) property are being evaluated and one of them is going to be impacted, the impacted portion must be the one with the least severe impactthe one that has open land, for example, rather than a historic house; or a ravine, rather than a baseball field.

In short, not all Section 4(f) resources are equal. A comparison of all impacts, an evaluation of every alternative, and an examination of the function of each Section 4(f) resource will help minimize harm and thus determine which alternative is considered the most appropriate.

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After all minimization efforts have been explored, mitigation measures are typically pursued. Mitigation entails measures to compensate for a Section
4(f) impact that cannot be avoided. It usually entails replacement of land and facilities of comparable value and function, or monetary compensation that can be used to enhance the remaining property around a Section 4(f) resource.

Mitigation of historic sites may include the placement of vegetative buffers and screening to the project area. It usually entails measures that have been designed to preserve the historic integrity of the site and that have been agreed uponin accordance with the Advisory Council on Historic Preservations regulations (36 CFR, Part 800)by the Federal Highway Administration (FHWA), the State Historic Preservation Officer (SHPO) and, as appropriate, the Advisory Council on Historic Preservation (ACHP).

The cost of mitigation should be a reasonable public expenditure in light of the severity of the impact on the Section 4(f) resource.

Mitigation may include one or more of the following measures, as approved by the FHWA:

  1. Replacement of lands on which there is a Section 4(f) use with lands of at least comparable value, and of reasonably equivalent usefulness and location
  2. Replacement of facilities impacted by the project, including sidewalks, paths, benches, lights, trees, and other facilities
  3. Restoration and landscaping of disturbed areas
  4. Incorporation of design features and habitat features where necessary
  5. Payment of fair market value for the land
  6. Any additional measures recommended during consultation with the official with jurisdiction

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