127.10 Section 4(f) Public Lands

127.10.1 Introduction

127.10.1.1 Overview

Section 4(f) of the Department of Transportation Act of 1966 specifies that a transportation project requiring the use of publicly owned parks, recreation areas, historic sites (including those owned privately), wildlife and waterfowl refuges, and many other types of resources can be approved only if there is no feasible and prudent alternate to using that land and if the project is planned to minimize harm to the property. These types of properties are often referred to as Section 4(f) resources.

The Land and Water Conservation Fund (LWCF) Act requires similar restrictions for public recreation facilities funded with LWCF monies. The LWCF Act provides funds for the acquisition and development of public outdoor recreation facilities that could include community, county, and state parks; trails; fairgrounds; conservation areas; boat ramps; shooting ranges; etc. Impacts on LWCF-assisted facilities require mitigation that includes replacement land of at least equal value and recreational utility. These requirements are referred to as Section 6(f) requirements.

The MoDOT environmental specialist monitors all federally funded roadway improvement projects for compliance with Section 4(f) and Section 6(f) requirements. Early coordination is important when projects impact or propose to impact any public resource or private historic site that FHWA considers eligible for Section 4(f) protection. The district must provide information for the environmental specialist to use in preparing documentation for the FHWA to make the eligibility determination.

The environmental specialist maintains a library of maps and property ownership information for all lands under the jurisdiction of the Missouri Department of Natural Resources (MDNR) and the Missouri Department of Conservation (MDC), as well as a listing of all public recreation facilities funded with LWCF money. The environmental specialist can provide information about Section 4(f) and Section 6(f) constraints for proposed projects at the district's request.

127.10.1.2 Section 4(f) Laws and Regulations

• Section 4(f) Legislation: Department of Transportation Act of 1966 (Section 4(f)) 49 U.S.C. 303, 23USC 138.

• Regulations: 23 CFR 771.135

• The National Environmental Policy Act (NEPA) of 1969 (as amended)

127.10.1.3 Section 4(f) Policy and Guidance

• Guidance for Determining De Minimus Impacts to Section 4(f) Resources, FHWA (December 13, 2005)

• Section 4(f) Policy Paper, FHWA (March 1, 2005)

• Guidance for Preparing and Processing Environmental and Section 4(f) Documents, FHWA (October 30, 1987)

• Final Nationwide Section 4(f) Net Benefits 4(f) Programmatic Evaluation, FHWA Programmatic Evaluation (April 20, 2005)

• ACTION: Interim Guidance on Applying Section 4(f) On Transportation Enhancement Projects and National Recreational Trails Projects, FHWA Memorandum to Regional Administrators, Federal Lands Highway Program Administrator (August 22, 1994)

• Alternatives Selection Process for Projects Involving Section 4(f) of the DOT Act, FHWA Memorandum to Regional Federal Highway Administrators, Federal Lands Highway Program Administrator, (November 15, 1989)

• Environmental Guidebook Additions to Section 4(f) Policy Paper, FHWA Memorandum to Regional Federal Highway Administrators and. Federal Lands Highway Program Administrator (June 7, 1989)

• Guidance for Preparing and Processing Environmental and Section 4(f) Documents, FHWA Technical Advisory (October 30, 1987)

• Section 4(f) Policy Paper, FHWA Memorandum to Regional Federal Administrators, Regions l–10, Direct Federal Program Administrators (October 5, 1987)

• Final Nationwide Section 4(f) Evaluation and Approval for Federally-Aided Highway Projects with Minor Involvements with Historic Sites, FHWA Programmatic Evaluation (December 23, 1986)

• National Evaluations for Projects with Minor Section 4(f) Involvements, FHWA Memorandum to Regional Federal Administrators, Region l–10 and Direct Federal Program Administrators (December 23, 1986)

• Final Nationwide Section 4(f) Evaluation and Approval for Federally-Aided Highway Projects with Minor Involvements with Public Parks, Recreation Lands, and Wildlife and Waterfowl Refuges, FHWA Programmatic Evaluation (December 23, 1986)

• Access Ramps to Public Boat Landing Areas, FHWA Memorandum to Regions (April 22, 1986)

• Section 4(f) - Constructive Use, FHWA Memorandum to Regional Federal Highway Administrators, Regions 1–10, and Direct Federal Program Administrator (November 12, 1985)

• Programmatic Section 4(f) Evaluation and Approval for FHWA Projects that Necessitate the Use of Historic Bridges, FHWA Programmatic Evaluation (July 5, 1983)

• Proposed Seaway Trail and Bikeway Application of Section 4(f), FHWA Memorandum to Regional Federal Highway Administrator, Albany- New York (March 7, 1983)

• Section 4(f) Involvements, Wildlife and Scenic River Corridors, FHWA Letter to Region 3 (June 6. 1978)

• Negative Declaration/Section 4(f) Statement for Independent Bikeway or Walkway Construction Projects, FHWA Memorandum to Regional Federal Highway Administrators, Regions 1–10, and Regional Engineer, Region 15 (May 23, 1977)

127.10.1.4 Section 6(f) Laws and Regulations

• Wilderness Act
• 16 U.S.C. 1131-1136
• Land and Water Conservation Fund Act [Section 6(f)]
• 16 U.S.C. 460-4 to 460-11 (P.L. 88-578)

127.10.1.5 Section 6(f) Policy and Guidance

Proposed Seaway Trail and Bikeway Application of Section 4(f), FHWA (March 7, 1983)

127.10.2 Process

127.10.2.1 District Responsibilities

The district should inform consultants preparing work that may involve Section 4(f) or Section 6(f) resources to coordinate with the environmental specialist and not to correspond directly with resource agencies or the FHWA.

127.10.2.1.1 Section 4(f) Properties

The district is responsible for sending the necessary background information to the Design Division early in the project development process, before an Environmental Assessment (EA) or Environmental Impact Statement (EIS) is prepared or before detailed design begins on a Categorical Exclusion (CE) project. Submitting the required information to the Design Division early facilitates compliance with both the National Environmental Policy Act (NEPA) and Section 4(f). The determination of Section 4(f) applicability is generally made prior to submission of the environmental documentation to the FHWA, since any necessary Section 4(f) Evaluation is normally submitted to FHWA as part of the NEPA documentation.

Section 4(f) Evaluations

A Section 4(f) evaluation may be required whenever the project development process determines that a project may lead to potential adverse impacts to historic resources that require preservation in place (usually historic buildings, locations, or sacred areas). The Section 4(f) evaluation requires the consideration of costs (ROW and construction) and feasibility of alternative plans that would avoid impacts to the historic resource. The Section 4(f) evaluation containing details of the alternative plans is then submitted to FHWA who reviews them and must approve them as a draft Section 4(f) evaluation. The document is then forwarded to the Department of the Interior (DOI) for review. If the DOI concurs, the FHWA will conclude the process by approving a final Section 4(f) evaluation.

The review period of Section 4(f) evaluations is very lengthy and ranges from 6 to 8 months. MoDOT usually may not make ROW offers to landowners on a project while the Section 4(f) evaluation is still under consideration since this may foreclose on the project's potential ability to avoid impacts to the historic resource. Not complying with the Section 4(f) process can jeopardize federal participation in the project. Additional information on Section 4(f) evaluation is also available.

Whenever possible, the districts should provide information as soon as available rather than waiting for right-of-way plan sheets to clearly show where the impacts will occur. The district should provide a sketch or drawing and an estimate of the amount of right of way likely to be acquired unless plans showing the required acreages of right of way, temporary construction easement, and permanent easement are available. For all likely Section 4(f) properties considered for acquisition, the district should provide photographs (including overall images of the resource, photos of the encroachment area, and pictures of any recreational facilities) to the environmental specialist. For larger projects, the environmental specialist may need to visit the site. The district must provide county ownership plat maps, to determine whether the property is privately or publicly owned, along with deeds and lease agreements to determine whether the deed describes any restrictions or permanent dedications to recreation.

For projects that involve only a temporary construction easement with minimal or no impacts or that involve a publicly owned area not considered a Section 4(f)-eligible resource, the district can proceed with project development once FHWA concurs with the Section 4(f) inapplicability determination (assuming that NEPA has been completed). However, any later changes in the plans affecting the Section 4(f) property must be coordinated with the environmental specialist.

For projects involving the permanent use of public land where Section 4(f) is applicable, at least one alternate that avoids impacts to any Section 4(f) properties (including historic sites) must be considered. The district will provide such an avoidance alternate(s) to allow the analysis of impacts associated with avoiding the 4(f) property. The avoidance alternate(s) is to be developed with the same design standards, costs, and associated environmental and social impact analysis as the other alternates considered. Making unbalanced comparisons could lead to designing an unacceptable roadway if the avoidance alternative is selected as the preferred alternative. Although full detailed design of the avoidance alternate(s) is not necessary, enough work must be done to indicate the impacts, costs, etc. of choosing such alternate(s) that avoids Section 4(f) properties. In addition to a discussion of alternates that would avoid and/or minimize impacts to the affected area, the district will also provide any design or construction measures that would minimize harm to the impacted area. Such measures include, but are not limited to, narrowed medians, retaining walls, steeper side slopes, use of temporary construction easement instead of right of way, seeding and mulching, and tree replacement.

Although contact with the landowner may be limited until the acquisition of right of way, it is necessary to determine whether the Section 4(f) landowner is in agreement with the use of their land for highway purposes. MoDOT must obtain the landowner/agency’s opinion about the taking; however, their willingness to incur impacts does not negate the need to follow the process. Therefore the district will, at a time determined through coordination with the environmental specialist, send a letter to the owner with jurisdiction over the Section 4(f) land requesting authority to use or purchase the land. In some cases, the owner may provide information regarding the property that was previously unknown to MoDOT or the owner may have an opinion as to how the land use is mitigated. There may also be federal involvement in the land that would dictate how mitigation proceeds.

For projects involving the permanent use of public land where Section 4(f) is applicable and the project meets certain criteria, FHWA may determine that a programmatic Section 4(f) applies and a full Section 4(f) Evaluation is not necessary. This can save months in the project development process. Once FHWA concurs with the programmatic Section 4(f), the district can proceed with project development (assuming that NEPA has been completed) but must coordinate any later changes in the plans affecting the Section 4(f) property with the environmental specialist.

Generally, an approved programmatic or a full Final Section 4(f) Evaluation allows detailed design to begin and land to be acquired from that Section 4(f) property; however, the district should not proceed with property acquisition before verifying with environmental and historic preservation staff that there are no other outstanding issues [for example, Section 106 or Section 6(f)] related to the 4(f) property. If the project parameters affecting the Section 4(f) property change, the district should confirm the status with the environmental specialist.

127.10.2.1.2 Section 6(f) Properties

If a project may impact Section 6(f) lands, the district should coordinate with the environmental specialist early in project development. Prior to detailed design, the district must develop alternates that avoid the Section 4(f) and Section 6(f) properties for FHWA and the U.S. Department of Interior National Park Service (NPS) to assess. The determination of Section 6(f) properties requires the same information that Section 4(f) properties require. The district should provide this information as early as possible and even before right-of-way plans are available. If right-of-way plans are not available, the district provides an estimate of the amount of right of way to be acquired.

Note that while Section 4(f) is generally specific to the entire recreation facility, Section 6(f) is only applicable to areas designated on maps as being LWCF-assisted. The environmental specialist will usually review the maps in the MDNR files. The district does not need to correspond with the agency having jurisdiction over the facility, because the local jurisdiction may not know whether there is any federal funding of their parklands. The district may need to provide assistance in the preparation of the Section 6(f) Conversion document, by locating potential replacement land and with real estate appraisals.

127.10.2.2 Environmental Section Responsibilities

The environmental specialist prepares all coordination letters to ensure consistency. The environmental specialist also coordinates with FHWA and MDNR.

127.10.2.2.1 Section 4(f) Properties

When the only use of parkland will be a temporary construction easement with minimal or no impacts or when the area is not considered a Section 4(f)-eligible resource, the environmental specialist sends FHWA a letter stating the reason Section 4(f) is inapplicable.

For the permanent acquisition of parkland where Section 4(f) is applicable, a programmatic Section 4(f)—a less detailed evaluation that establishes a threshold of impacts for certain types of proposals—may be used to satisfy the requirements if the acreage being acquired meets certain criteria. The criteria allow the use of 10% of the resource acreage for sites comprising less than 10 acres, 1 acre for sites from 10 to 100 acres in size, and 1% of the property for resources over 100 acres. If the criteria are not exceeded, FHWA certifies that the programmatic evaluation applies and a full Section 4(f) Evaluation is not necessary. In many cases this can save months in the project development process. The environmental specialist will determine whether use of a programmatic Section 4(f) is appropriate and will prepare the letter requesting FHWA’s concurrence that the proposed use of the resource is covered by the programmatic Section 4(f) determination.

If the property is eligible as a Section 4(f) resource and impacts exceed the criteria for a programmatic Section 4(f), the environmental specialist will prepare a Section 4(f) Evaluation. The Section 4(f) Evaluation assesses alternates that would avoid impacts to Section 4(f) properties (including historic sites). If MoDOT shows that there is no feasible and prudent alternative to the alternate that affects the Section 4(f) property and indicates all proposed measures to minimize harm to that property, FHWA may approve use of that Section 4(f) property for the project. For an EA or EIS, the Draft Section 4(f) Evaluation must be included in the EA or Draft EIS (DEIS) and FHWA must approve the Draft Section 4(f) Evaluation as part of the approved EA or DEIS before the location public hearing can be held or before detailed design begins on CE projects. The approved Draft Section 4(f) Evaluation is provided to the U.S. Department of the Interior (DOI) for comment. For EISs, this occurs automatically with circulation of the DEIS. The environmental specialist circulates the approved Draft Section 4(f) Evaluation accompanying an EA or separate Section 4(f) Evaluations prepared for projects classified as CEs to DOI for comment.

A Final Section 4(f) Evaluation that addresses any substantive comments is included with the Finding of No Significant Impact (FONSI) or Final EIS (FEIS). For CE projects, the environmental specialist prepares a separate Final Section 4(f) Evaluation. FHWA approval of the Final Section 4(f) Evaluation is integrated with location approval, which allows detailed design to begin.

127.10.2.2.2 Section 6(f) Properties

The environmental specialist will verify that LWCF funds were expended on the property by reviewing the listing of projects in Missouri that received LWCF monies for acquisition or development. If the parkland was acquired or developed with LWCF monies, the project sponsor was required to provide a map designating the boundaries when the federal money was invested and Section 6(f) boundaries can be determined by reviewing MDNR files. The environmental specialist also determines whether there are any areas of the park that were not designated for protection.

The environmental specialist coordinates the proposed land use with the agency having jurisdiction over the LWCF-assisted property (including the NPS and MDNR). If the jurisdiction with control over the property determines the proposed use of the property to be a “conversion” of Section 6(f) invested land to non-outdoor recreation purposes, federal regulations require replacement of the converted land rather than monetary compensation. The environmental specialist will assist the district in determining the type of replacement land that will fulfill the mitigation. Both the replacement land and the impacted parkland must be appraised and independently reviewed. If the property was developed or improved with LWCF funds, MoDOT must prepare a Section 6(f) Conversion document for approval by MDNR and the NPS. This document includes an environmental assessment of both the converted parcel and the replacement parcel as well as appraisals, appraisal reviews, cultural resource reviews, current development maps for the converted parcel, and future development maps for the replacement parcel. The environmental specialist prepares this document with the assistance of the district. The Section 6(f) Conversion document may be integrated with the Section 4(f) Evaluation and either the EA or EIS, although this is unlikely since right-of-way plans are needed. For CE projects, the environmental specialist prepares a separate Final Section 6(f) Conversion document.

127.10.3 Project Development Milestones

127.10.3.1 Initial Screening Stage

If right-of-way information is available, the environmental specialist will screen the project area for public lands using all available references. If no public lands are found, no further action is required. If public lands are found and impact is unavoidable, the environmental specialist will coordinate with the district and the appropriate agencies to complete the Section 6(f), if applicable, or required level of Section 4(f) document.

127.10.3.2 Location/Conceptual Plan Stage

If the right-of-way information is available, the environmental specialist will screen the project for public lands using all available references. If no public lands are found, no further action is required. If public lands are found and impact is unavoidable, the environmental specialist will coordinate with the district and the appropriate agencies to complete the Section 6(f) or required level of Section 4(f) document.

127.10.3.3 Preliminary Plans Stage

If information on right-of-way takings, ownership, management plan, etc. is available, the environmental specialist will screen the project for public lands using all available references. If no public lands are found, no further action is required. If public lands are found and impact is unavoidable, the environmental specialist will coordinate with the district and the appropriate agencies to complete the Section 6(f) or required level of Section 4(f) document. Section 4(f) documentation and approval should be completed at this stage.

127.10.3.4 Right of Way Plan Stage

The environmental specialist will screen the project for public lands using all available references. If no public lands are found, no further action is required. If public lands are found and impact is unavoidable, the environmental specialist will coordinate with the district and the appropriate agencies to complete the Section 6(f) or required level of Section 4(f) document. Section 4(f) documentation and approval should be completed by this stage and 6(f) documentation should be under development.

127.10.3.5 Final Design Stage

Any necessary Section 4(f) or Section 6(f) documentation and approval should be completed by this stage. If impact to public lands is unavoidable and Section 4(f)/6(f) documentation and approval have not been completed by this stage, the project could be delayed.

127.10.3.6 Letting

Any necessary Section 4(f) or Section 6(f) documentation and approval should be completed by this stage. If previously unrecognized public lands are discovered at letting and impact is unavoidable, no construction activities of any kind will take place on the affected property until the environmental specialist coordinates with the district and the appropriate agencies to complete the appropriate level of Section 4(f) or Section 6(f) documentation. The environmental specialist will notify the district when construction can proceed.

127.10.3.7 Post-Letting Activities

Post-letting activities are likely to be related to mitigation and will require further coordination between the environmental specialist, the district, and appropriate agencies.