Section 4(f) Regulations

Environmental & Mitigation | Section 4(f) Regulations

What is Section 4(f)?

Section 4(f) refers to the original section within the U.S. Department of Transportation Act of 1966 which provided for consideration of park and recreation lands, wildlife and waterfowl refuges, and historic sites during transportation project development. The law, now codified in 49 U.S.C. §303 and 23 U.S.C. §138, applies only to the U.S. Department of Transportation (U.S. DOT) and is implemented by the Federal Highway Administration (FHWA) and the Federal Transit Administration through the regulation 23 Code of Federal Regulations (CFR) 774. Section 4(f) applies to projects that receive funding from or require approval by an agency of the U.S. DOT. Section 4(f) properties include significant publicly owned public parks, recreation areas, and wildlife or waterfowl refuges, or any publicly or privately owned historic site listed or eligible for listing on the National Register of Historic Places.

What is a de minimis impact?

For publicly owned public parks, recreation areas, and wildlife and waterfowl refuges, a de minimis impact is one that will not adversely affect the activities, features, or attributes of the Section 4(f) property. For historic sites, a de minimis impact means that FHWA has determined (in accordance with 36 CFR Part 800, regulations implementing Section 106 of the National Historic Preservation Act (NHPA)) that either no historic site is affected by the project or that the project will have "no adverse effect" on the historic site. A de minimis impact determination does not require analysis of feasible and prudent avoidance alternatives.

How can the public be involved in the decision making?

For parks and recreation areas, the official(s) with jurisdiction over the property must be informed of the intent to make a de minimis impact determination, after which an opportunity for public review and comment must be provided. After considering any comments received from the public, if the official(s) with jurisdiction concurs in writing that the project will not adversely affect the activities, features, or attributes that make the property eligible for Section 4(f) protection, then FHWA may finalize the de minimis impact determination. The public notice and opportunity for comment as well as the concurrence for a de minimis impact determination may be combined with similar actions undertaken as part of the NEPA process. If a proposed action does not normally require public involvement, such as for certain minor projects covered by a categorical exclusion, an opportunity for the public to review and comment on the proposed de minimis impact determination must be provided. The opportunity for public input may be part of a public meeting or another form of public involvement. The final determination should be made by the FHWA Division Administrator (or in the case of Federal Lands, the Division Engineer) and all supportive documentation retained as part of the project file.

For more information, check out: FHWA's Section 4(f) Policy Paper