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SECTION
Introduction
Types of Use
Other Considerations
One of the first things you should do before starting a transportation project is determine whether or not the project constitutes use (an adverse impact to, or occupancy of, a Section 4[f] resource). There are four main types of use:
This portion of the document will introduce you to each type and help you to recognize use in various projects.
FEE SIMPLE
This type of use involves a Right-of-Way (ROW) acquisition of Section 4(f) land as part of a transportation project. In other words, the transportation agency directly purchases the property, and the property sustains a permanent impacttypically, changing from Section 4(f) property to a transportation facility.
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PERMANENT EASEMENT
With this type of use, the transportation agency acquires a permanent easement on the Section 4(f) property. Examples of permanent easement use include maintenance access, utility access, placement of stream outfall structures. Permanent easement use differs from fee simple use in that the easement may not necessarily change the landscape permanently.
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TEMPORARY EASEMENT
During the construction phase of the highway project, a temporary easement such as a staging or access area may be needed. Once the easement is no longer needed, the Section 4(f) resource must be restored to the condition in which it was originally found. This may involve re-grading or re-vegetating the area.
Note: Temporary easement use may be considered Section 4(f) use if the land is subject to temporary or permanent adverse changes, such as contour alterations or removal of mature trees and other vegetation. Temporary easement use may not be considered a Section 4(f) use if all of the following conditions exist:
- The land use is of short duration (defined as less than the time needed for the construction phase)
- There is no change in ownership of the land
- The transportation agency has no long term or indefinite vested interest in the land
- There are no temporary or permanent adverse changes to the resource
- The project involves only a minor portion of the resource
Conditions must be evaluated on a case-by-case basis to determine whether or not a particular activity constitutes use of a Section 4(f) resource. Communication with the state Department of Transportation (DOT) and the official with jurisdiction is critical in order to get a determination from the Federal Highway Administration (FHWA).
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CONSTRUCTIVE
This form of use involves an indirect impact to the Section 4(f) resource. Here the project does not physically incorporate the resource but is close enough to it to severely impact activities associated with it, and to substantially impair it in the eyes of the FHWA.
Constructive use may include impacts such as noise, access restrictions, vibration, ecological intrusions and visual impacts. Note that constructive use does not occur under the following conditions:
- When there is a finding of "No historic properties affected" or "No adverse effect" under Section 106
- When noise resulting from the project does not approach or exceed the FHWA noise abatement criteria or when it is considered barely perceptible
- When administration approval is made prior to designation of significance
- When a transportation project reserves a portion of Section 4(f) property for future use
- When the overall combined impacts do not result in substantial impairment
- When impacts are mitigated to a condition equal to or better than the no-build option
- When a change in accessibility is considered minor
- When vibration impacts are considered minor or mitigated
FHWA policy maintains that a constructive use of Section 4(f) land, though possible, is rare and should therefore be examined carefully. Project documents should contain the analysis of proximity effects and a discussion of whether or not there is substantial impairment to a Section 4(f) resource. The term "constructive use" need not be used, except when responding to review comments in environmental documents that specifically address constructive use. In cases where it has been determined that there is a constructive use, the draft Section 4(f) evaluation must be cleared with the FHWA Washington Headquarters prior to circulation.
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