Section 5: Section 4(f)/Section 6(f)Anchor: #i1011426
This section contains information on how and why to prepare a Section 4(f) evaluation and Section 6(f) documentation.Anchor: #i1011436
Section 4(f) of the U.S. Department of Transportation Act of 1966 states that FHWA may not approve the use of land from a significant publicly owned park, recreation area, wildlife or waterfowl refuge, or historic site. However, if a determination is made that there is no feasible and prudent alternative to the use of land from the property and the action includes all possible planning to minimize harm to the property resulting from such use, then the taking may be approved.
Use occurs when land from a Section 4(f) site is acquired for a transportation project and:
- there is an occupancy of land that is adverse in terms of the statute’s preservationist purposes; or
- the proximity impacts of the transportation project on the Section 4(f) site, without acquisition of land, are so great that the purposes for which the Section 4(f) site exists are substantially impaired.
Land and Water Conservation Fund Act (Section 6[f])
The act establishes a land and water conservation fund to assist local, state, and federal agencies in meeting the demand for present and future outdoor recreation sites. This is done through grants for land acquisition, park amenities, and other park development costs.
Once a city, county, or agency has used Section 6(f) for funds, either the land or the park appurtenances cannot be eliminated or acquired without coordination with the National Park Service (NPS) and mitigation that replaces the eliminated items. The mitigation must be at least at a ratio of 1:1, for both quality and quantity.Anchor: #i1011476
Section 4(f) Applicability of Parks, Recreation Areas, etc. (Non-Cultural Resources)
Publicly owned land is considered to be a park, recreation area, or wildlife and waterfowl refuge when the land has been officially designated as such, or when federal, state, or local officials having jurisdiction over the land determine that one of its major purposes or functions is for park, recreation, or refuge purposes.
Incidental, secondary, occasional, or dispersed recreational activities do not constitute a major purpose. For the most part, “officials having jurisdiction” are the officials of the agency owning or administering the land.Anchor: #i1011491
“Significant” Property Status
“Significance” determinations on publicly owned land considered to be park, recreation area, or refuge, are made by the officials having jurisdiction over the land. The significance determination must consider the significance of the entire property and not just the portion of the property used for the project.
Significance means that in comparing the availability and function of the recreation, park or refuge area with the recreational, park, or refuge objectives of that community, the land in question plays an important role in meeting those objectives.
If a determination from the official with jurisdiction cannot be obtained, the Section 4(f) land will be presumed to be significant.
Park, recreation land, and refuge, as well as historic site designations and determinations of significance sometimes change late in the development of a proposed action. FHWA may permit a project to proceed without consideration under Section 4(f) if the property was acquired prior to the change in designation or significance and if an adequate effort was made to identify Section 4(f) properties prior to acquisition.Anchor: #i1011516
Section 4(f) Applicability to Cultural Resources
In addition to Section 106 of the National Historic Preservation Act, Section 4(f) regulations may also apply to cultural resources.
- Applies to projects that require the use of land from a property listed or determined eligible for listing on the National Register of Historic Places.
- Section 4(f) use of a historic property occurs if a project
meets any of the following conditions:
- Land from a historic property will be acquired.
- A project contains one or more historic properties within the project limits.
- A project will cause a “constructive use” to a historic property by substantially impairing or reducing the historic significance of the property through proximity impacts.
Exception to Section 4(f) Applicability
Generally, a Section 4(f) applies whenever a project will require use of a historic property, regardless of whether a project is determined to have “no effect,” “no adverse effect,” or “adverse effect” on historic properties as a result of THC/SHPO coordination process. The exceptions to this are as follows:
- For historic bridges and transportation facilities (i.e., roads, culverts, etc.), a project must have an adverse effect on these properties for a Section 4(f) to apply.
- For archeological sites, Section 4(f) only applies if THC/SHPO determines that a significant archeological site warrants preservation in place. Because THC/SHPO determines that most archeological sites are significant for the information they may yield (and not for their preservation in place), most sites are not subject to Section 4(f) evaluations.
- For traditional cultural properties (historic properties that are of traditional or cultural significance to a federally recognized Indian tribe) that warrant preservation in place.
Section 4(f) Evaluation Content
Section 4(f) documentation must include the following information in the listed order:
- proposed action
- describe the 4(f) property:
- detailed map or drawing
- size and location of impact (existing park and remaining park)
- ownership and type of property (park, historic, etc.)
- function of activities for property
- description of all existing and planned facilities
- access and usage
- relationship to other similar lands in the area
- applicable clauses affecting ownership, such as lease, etc.
- unusual characteristics that either reduce or enhance property value of the section 4(f) property
- avoidance alternatives
- measures to minimize harm
NOTE: For more information on Section 4(f) evaluation formats, please see FHWA Technical Advisory T6640.8A.
Supporting information must demonstrate unique problems or unusual factors involved in the use of alternatives avoiding the 4(f) property or the cost, social, economic, and environmental impacts, or community disruption resulting from such alternatives reach extraordinary magnitudes.Anchor: #i1011668
Coordination of the Section 4(f) Evaluation
Section 4(f) evaluation should be sent to the officials having jurisdiction over the Section 4(f) property for coordination and comment, FHWA for review by the Department of the Interior, and, as appropriate, to the Department of Agriculture and the Department of Housing and Urban Development. ENV sends the Section 4(f) evaluation for interagency comment.
FHWA has established a minimum of 45 days for receipt of comments.Anchor: #i1011683
Programmatic Section 4(f) Evaluations
Programmatic Section 4(f) evaluations may be prepared for projects with minor impacts on public parks, recreation lands, wildlife and waterfowl refuges, and historic sites, provided that the project meets FHWA’s programmatic thresholds.
Projects that meet these thresholds are still evaluated in a 4(f) evaluation, although it is not reviewed by the agencies listed above, with the exception of FHWA.Anchor: #i1011698
Approval of Section 4(f) and Section 6(f)
Following review of the programmatic Section 4(f) and the review and analysis of comments, FHWA's Texas office approves the Section 4(f) document. For other Section 4(f) evaluations, FHWA's headquarters approves the document after the review and analysis of comments. Section 6(f) requirements are typically satisfied with Section 4(f) mitigation.