Section 4(f)

What is the Section 4(f) law?
The term “Section 4(f)” refers to the original section number in the U.S. Department of Transportation Act of 1966. The law reads:

The Secretary may approve a transportation program or project…requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if:
  1. There is no prudent and feasible alternative to using that land; and
  2. The program or project includes the possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.

What is a Section 4(f) resource?
Section 4(f) resources include any significant publicly owned park, recreation area, or wildlife or waterfowl refuge or significant historic site.

What does Section 4(f) require?
Before approving a project that “uses” a Section 4(f) resource, FHWA must find that there is no prudent and feasible alternative AND that the selected alternative minimizes harm to the resource. If there is a prudent and feasible alternative that completely avoids 4(f) resources, it must be selected. If there is no prudent and feasible alternative that avoids 4(f) resources, FHWA has some discretion in selecting the alternative that causes the least harm to 4(f) resources.

What is feasible?
An alternative is considered feasible if it can be constructed as a matter of sound engineering. Alternatives that are studied in a Draft Environmental Impact Statement are almost always feasible; otherwise they should not be carried forward for detailed study.

What is prudent?
The Supreme Court has defined an alternative as not prudent only if it involves “truly unusual factors” or “unique problems” or the cost of community disruption reaches “extraordinary magnitudes”.

What is least harm?
FHWA must consider many factors. Does the project shave an edge of a resource as opposed to cutting through the middle? Does it alter a historic building or impact surrounding land? Does it take an unused portion or a highly used portion of a park? FHWA must consider the net impacts of each alternative after mitigation measures have been taken into account. If two alternatives cause “substantially equal” harm to 4(f) resources, FHWA may choose either one.

Who makes the 4(f) decision for highway projects?
FHWA decides whether Section 4(f) applies to a resource, reviews assessments of each alternative’s impacts to 4(f) properties, and determines whether the law allows the selection of a particular alternative after consulting with the Department of the Interior.