U. S. Department
ACTION: Interim Guidance on Applying Section 4(f)
On Transportation Enhancement Projects and
National Recreational Trails Projects
|Date:||August 22, 1994|
|From:||Director, Office of Environment
Federal Lands Highway Program Administrator
The Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), in Section 1007(c), created "Transportation Enhancements" and identified 10 specific types of activities which could receive such funds. The ISTEA, in Section 1302, also created the National Recreational Trails Funding Program (often referred to as the Symms Act), which is designed to fund "recreational" trails projects. The objective of both of these programs is to enhance resources. In many cases, these two programs would be considered to also fall under the strict interpretation of Section 4(f) requirements since both programs, especially the National Recreational Trails, could involve working on a 4(f) protected resource. This office has received numerous regulation/policy interpretation requests on whether and how to apply Section 4(f) to these two programs.
However, ISTEA and Section 4(f) are directed towards preserving, protecting, and enhancing Section 4(f) properties. The ISTEA, by its very title, is looking for ways to make program and project delivery more efficient. Thus, it is inconceivable that these two statutes, both of which contain preservationist purposes, should be interpreted in such a manner that potential enhancement and trail project applicants would be saddled with burdensome paperwork, a rigorous alternatives analysis process, and circulation requirements which would substantially delay project implementation when the sole purpose of the project is to enhance or create a 4(f) protected resource. In keeping with the goals of the current Administration and mandates from the National Performance Review, this guidance will simplify project processing by streamlining applicable environmental requirements and review times.
This office has determined that Section 4(f) should not be applied to the National Recreational Trails Funding Program and that it should only be applied to the "Transportation Enhancements" Program when certain conditions are not met by each project. The attached interim guidance contains the basis for these determinations.
Because the Federal Transit Administration, the Federal Railroad Administration, and the Federal Highway Administration are currently in the early stages of issuing a Notice of Proposed Rulemaking to revise 23 CFR 771, which contains the Agency's environmental and 4(f) requirements, we are issuing these determinations as an interim measure until changes to 23 CFR 771 can be promulgated through the regulatory rulemaking process. In order to ensure that other resource agencies, organizations, and individuals with an interest in this area are aware of these determinations, we will publish this interim guidance in the Federal Register as a final policy interpretation. Once 23 CFR 771 has been revised to address this subject, the interim guidance will become null and void.
For Kevin E. Heanue
Section 4(f) Interim Guidance
Transportation Enhancement Activities
National Recreational Trails Program
All of our current regulations, policy, and guidance on Section 4(f) has been written to comply with 49 U.S.C. Section 303, which is the recodified version of Section 4(f) of the 1966 DOT Act. Section 303 reads as follows:
(a) It is the policy of the United States Government that special effort be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.
(1) there is no prudent and feasible alternative to using that land; and
(2) the program or programs includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.
Section 138 of Title 23 U.S.C. (which applies only to the Federal-aid highway program), contains similar language, with one distinct difference. The portion of Section 138 that parallels Section 303(c) has an additional sentence at the end that reads, "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."
Because the "Transportation Enhancements" Program and the National Recreational Trails Funding Program are administered by the Federal Highway Administration (FHWA) which is an Agency of the U.S. Department of Transportation, both are subject to the provisions of Section 4(f) as programs or projects just as the Federal-aid highway program is subject to these provisions. Thus, determinations can be made at either the program or project level that the provisions of Section 4(f) do not apply provided certain conditions are satisfied. Because of past experience with highway projects having impacts ranging from no impact to total acquisition, when the FHWA has used a project level determination. Basically, a two-step process is used when determining whether or not to prepare a Section 4(f) evaluation for an individual project, and should one of the steps not be satisfied, the provisions of Section 4(f) would not apply to the project in question. This two-step process is as follows:
Note: At this point we are only dealing with whether we have a resource and whether we are "using" land from that resource. We are not dealing with the "feasible and prudent" alternative test.
The FHWA's Section 4(f) Policy Paper dated September 24, 1987, provides additional information on implementing both of these steps on individual projects. But, as stated earlier, should one or both of the above steps receive a negative response, a 4(f) evaluation is not required. What is required is that this fact be documented in the NEPA document for the project in question. Although, the two new ISTEA programs have some commonalities, they are quite different. Thus, the remainder of this guidance will deal with how the two-step process should be implemented for each of these new ISTEA programs.
Transportation Enhancement Activities
Section 1007 of ISTEA established the Surface Transportation Program (STP) Funds, of which the Transportation Enhancement Activities are a part. Currently, only the following ten activities are eligible for funding as transportation enhancements:
While all of the above activities could potentially impact 4(f) resources, we have determined that of these ten activities, six (TEAs 1, 2, 3, 5, 6, and 9 as listed above) have the greatest likelihood of impacting a 4(f) resource. This is because the resource to be enhanced by the TEA project is in all likelihood a 4(f) protected resource. Therefore, the first step of the two-step process is usually satisfied, the resource is a 4(f) protected property. The second step must then be analyzed. Are we using the resource based on the three types of "use" contained in 23 CFR 771.135(p)? Upon reviewing existing regulations, policy, and guidance, we have determined that the question of "use" for TEAs 1, 3, 6, and 9 (as listed above) are already covered by existing regulations, policy, and/or guidance. The applicable regulation, policy, and/or guidance is as follows:
Thus, only TEA #2 and 5 require some form of regulation/policy interpretation at this time. TEA's #2 and 5 involve the acquisition of scenic easements and scenic or historic sites, and the preservation of historic structures, respectively. It should be noted that the simple designation of something as scenic does not automatically grant it 4(f) protection. This protection would only be granted if the scenic designation is basically an adjective used to further describe a resource already granted protection, such as a scenic trail or historical scenic site. However, historic sites are 4(f) protected resources, provided they are on or eligible for the National Register. Thus, what must be analyzed is whether we are using land from the resource in keeping with the three types of use in 23 CFR 771.135(p). We have examined this matter extensively and render the following determinations:
(i) Section 4(f) is invoked whenever Section 4(f) land is acquired for permanent incorporation into a transportation facility. However, the simple act of acquiring land/property does not automatically invoke 4(f). It is the change in land use from 4(f) protected to a transportation facility that causes 4(f) to be invoked. If the land/property is being acquired solely for the protection, preservation, or enhancement of a scenic or historic site, the official with jurisdiction has been consulted and concurs with the acquisition, and conditions, such as historical covenants, deeding to other governmental land management agencies, etc., are in place to provide long-range protection. Then, the provisions of 4(f) do not apply since there is no permanent incorporation of land into a transportation facility.
(ii) Generally, there will not be many instances of temporary occupancy of scenic/historic land for these two TEAs. However, should there be a temporary occupancy, as long as it can be documented that this occupancy is not adverse in keeping with the provisions of 23 CFR 771.135(p)(7).1 Then, 4(f) does not apply.
(iii) Constructive use occurs when the proximity impacts from a transportation project (the TEA in this case) substantially impairs the activities, features, or attributes of an adjacent 4(f) protected resource. Because constructive use deals with adjacent resources, it must still be examined for these and other TEAs.2 However, we feel this would be a very rare occurrence.
1,2 Coordination with the official with jurisdiction is required prior to making final determination on temporary occupancy and construction use.
The following examples were developed to aid in making determinations on whether there is a "use" of land from a 4(f) resource on a case-by-case basis. These examples were developed in keeping with existing guidance/policy and the three determinations made above.
National Recreational Trails Funding Program (NRTFP)
With the inclusion of this program in ISTEA, FHWA has the task of administering this recreational program at the Federal level. As stated earlier, FHWA has used a project level 4(f) determination for complying with the provisions of Section 303 of 49 U.S.C. and Section 138 of Title 23 U.S.C.. However, both of these sections allow a program level determination (see wording on pg. 1 for both of these laws). We do have some precedent in this area. The Great River Road program was excluded from the provisions of Section 4(f) at the program level rather than requiring normal project level determinations. A determination was also rendered that 4(f) did not apply to projects involving the construction of access ramps to public boat launching facilities within 4(f) resources. In both cases, it was found that applying the test of "feasible and prudent alternatives" resulted in alternatives being developed that were impractical and unreasonable and that would result in positive benefits to the resource being precluded in order to totally avoid impacting the 4(f) resource. This is not in keeping with the goal and spirit of 4(f). Since the NRTFP is similar to these two programs for which 4(f) did not apply, we have determined that Section 4(f) does not apply to the NRTFP. This determination is based on the following facts and reasoning:
No further work is required by our region or division offices from a Section 4(f) standpoint for the NRTFP. However, it must be remembered that NEPA and other applicable Federal laws, such as the Clean Water Act, the National Historic Preservation Act, etc., must still be complied with by the State/local applicant to obtain program funds. We suggest that this compliance be documented under our normal project development process using the NEPA document as the tool.