[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR771.135]

[Page 413-417]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 771_ENVIRONMENTAL IMPACT AND RELATED PROCEDURES--Table of Contents
 
Sec.  771.135  Section 4(f) (49 U.S.C. 303).

    (a)(l) The Administration may not approve the use of land from a 
significant publicly owned public park, recreation area, or wildlife and 
waterfowl refuge, or any significant historic site unless a 
determination is made that:
    (i) There is no feasible and prudent alternative to the use of land 
from the property; and
    (ii) The action includes all possible planning to minimize harm to 
the property resulting from such use.
    (2) Supporting information must demonstrate that there are unique 
problems or unusual factors involved in the use of alternatives that 
avoid these properties or that the cost, social, economic, and 
environmental impacts, or community disruption resulting from such 
alternatives reach extraordinary magnitudes.
    (b) The Administration will determine the application of section 
4(f). Any use of lands from a section 4(f) property shall be evaluated 
early in the development of the action when alternatives to the proposed 
action are under study.
    (c) Consideration under section 4(f) is not required when the 
Federal, State, or local officials having jurisdiction over a park, 
recreation area or refuge determine that the entire site is not 
significant. In the absence of such a determination, the section 4(f) 
land will be presumed to be significant. The Administration will review 
the significance determination to assure its reasonableness.
    (d) Where Federal lands or other public land holdings (e.g., State 
forests) are administered under statutes permitting management for 
multiple uses, and, in fact, are managed for multiple uses, section 4(f) 
applies only to those portions of such lands which function for, or are 
designated in the plans of the administering agency as being for, 
significant park, recreation, or wildlife and waterfowl purposes. The 
determination as to which lands so function or are so designated, and 
the significance of those lands, shall be made by the officials having 
jurisdiction over the lands. The Administration will review this 
determination to assure its reasonableness. The determination of 
significance shall apply to the entire area of such park, recreation, or 
wildlife and waterfowl refuge sites.
    (e) In determining the application of section 4(f) to historic 
sites, the Administration, in cooperation with the applicant, will 
consult with the State Historic Preservation Officer (SHPO) and 
appropriate local officials to identify all properties on or eligible 
for the National Register of Historic Places (National Register). The 
section 4(f) requirements apply only to sites on or eligible for the 
National Register unless the Administration determines that the 
application of section 4(f) is otherwise appropriate.
    (f) The Administration may determine that section 4(f) requirements 
do not apply to restoration, rehabilitation, or maintenance of 
transportation facilities that are on or eligible for the National 
Register when:
    (1) Such work will not adversely affect the historic qualities of 
the facility that caused it to be on or eligible for the National 
Register, and
    (2) The SHPO and the Advisory Council on Historic Preservation 
(ACHP) have been consulted and have not objected to the Administration 
finding in paragraph (f)(1) of this section.

[[Page 414]]

    (g)(1) Section 4(f) applies to all archeological sites on or 
eligible for inclusion on the National Register, including those 
discovered during construction except as set forth in paragraph (g)(2) 
of this section. Where section 4(f) applies to archeological sites 
discovered during construction, the section 4(f) process will be 
expedited. In such cases, the evaluation of feasible and prudent 
alternatives will take account of the level of investment already made. 
The review process, including the consultation with other agencies, will 
be shortened as appropriate.
    (2) Section 4(f) does not apply to archeological sites where the 
Administration, after consultation with the SHPO and the ACHP, 
determines that the archeological resource is important chiefly because 
of what can be learned by data recovery and has minimal value for 
preservation in place. This exception applies both to situations where 
data recovery is undertaken or where the Administration decides, with 
agreement of the SHPO and, where applicable, the ACHP not to recover the 
resource.
    (h) Designations of park and recreation lands, wildlife and 
waterfowl refuges, and historic sites are sometimes made and 
determinations of significance changed late in the development of a 
proposed action. With the exception of the treatment of archeological 
resources in paragraph (g) of this section, the Administration may 
permit a project to proceed without consideration under section 4(f) if 
the property interest in the section 4(f) lands was acquired for 
transportation purposes prior to the designation or change in the 
determination of significance and if an adequate effort was made to 
identify properties protected by section 4(f) prior to acquisition.
    (i) The evaluations of alternatives to avoid the use of section 4(f) 
land and of possible measures to minimize harm to such lands shall be 
developed by the applicant in cooperation with the Administration. This 
information should be presented in the draft EIS, EA, or, for a project 
classified as a CE in a separate document. The section 4(f) evaluation 
shall be provided for coordination and comment to the officials having 
jurisdiction over the section 4(f) property and to the Department of the 
Interior, and as appropriate to the Department of Agriculture and the 
Department of Housing and Urban Development. A minimum of 45 days shall 
be established by the Administration for receipt of comments. Uses of 
section 4(f) land covered by a programmatic section 4(f) evaluation 
shall be documented and coordinated as specified in the programmatic 
section 4(f) evaluation.
    (j) When adequate support exists for a section 4(f) determination, 
the discussion in the final EIS, FONSI, or separate section 4(f) 
evaluation shall specifically address:
    (1) The reasons why the alternatives to avoid a section 4(f) 
property are not feasible and prudent; and
    (2) All measures which will be taken to minimize harm to the section 
4(f) property.
    (k) The final Section 4(f) evaluation will be reviewed for legal 
sufficiency.
    (l) For actions processed with EISs, the Administration will make 
the section 4(f) approval either in its approval of the final EIS or in 
the ROD. Where the section 4(f) approval is documented in the final EIS, 
the Administration will summarize the basis for its section 4(f) 
approval in the ROD. Actions requiring the use of section 4(f) property, 
and proposed to be processed with a FONSI or classified as a CE, shall 
not proceed until notified by the Administration of section 4(f) 
approval. For these actions, any required section 4(f) approval will be 
documented separately.
    (m) Circulation of a separate section 4(f) evaluation will be 
required when:
    (1) A proposed modification of the alignment or design would require 
the use of section 4(f) property after the CE, FONSI, draft EIS, or 
final EIS has been processed;
    (2) The Administration determines, after processing the CE, FONSI, 
draft EIS, or final EIS that section 4(f) applies to a property;
    (3) A proposed modification of the alignment, design, or measures to 
minimize harm (after the original section

[[Page 415]]

4(f) approval) would result in a substantial increase in the amount of 
section 4(f) land used, a substantial increase in the adverse impacts to 
section 4(f) land, or a substantial reduction in mitigation measures; or
    (4) Another agency is the lead agency for the NEPA process, unless 
another DOT element is preparing the section 4(f) evaluation.
    (n) If the Administration determines under Sec.  771.135(m) or 
otherwise, that section 4(f) is applicable after the CE, FONSI, or final 
EIS has been processed, the decision to prepare and circulate a section 
4(f) evaluation will not necessarily require the preparation of a new or 
supplemental environmental document. Where a separately circulated 
section 4(f) evaluation is prepared, such evaluation does not 
necessarily:
    (1) Prevent the granting of new approvals;
    (2) Require the withdrawal of previous approvals; or
    (3) Require the suspension of project activities; for any activity 
not affected by the section 4(f) evaluation.
    (o) An analysis required by section 4(f) may involve different 
levels of detail where the section 4(f) involvement is addressed in a 
tiered EIS.
    (1) When the first-tier, broad-scale EIS is prepared, the detailed 
information necessary to complete the section 4(f) evaluation may not be 
available at that stage in the development of the action. In such cases, 
an evaluation should be made on the potential impacts that a proposed 
action will have on section 4(f) land and whether those impacts could 
have a bearing on the decision to be made. A preliminary determination 
may be made at this time as to whether there are feasible and prudent 
locations or alternatives for the action to avoid the use of section 
4(f) land. This preliminary determination shall consider all possible 
planning to minimize harm to the extent that the level of detail 
available at the first-tier EIS stage allows. It is recognized that such 
planning at this stage will normally be limited to ensuring that 
opportunities to minimize harm at subsequent stages in the development 
process have not been precluded by decisions made at the first-tier 
stage. This preliminary determination is then incorporated into the 
first-tier EIS.
    (2) A section 4(f) approval made when additional design details are 
available will include a determination that:
    (i) The preliminary section 4(f) determination made pursuant to 
paragraph (o)(1) of this section is still valid; and
    (ii) The criteria of paragraph (a) of this section have been met.
    (p) Use. (1) Except as set forth in paragraphs (f), (g)(2), and (h) 
of this section, ``use'' (in paragraph (a)(1) of this section) occurs:
    (i) When land is permanently incorporated into a transportation 
facility;
    (ii) When there is a temporary occupancy of land that is adverse in 
terms of the statute's preservationist purposes as determined by the 
criteria in paragraph (p)(7) of this section; or
    (iii) When there is a constructive use of land.
    (2) Constructive use occurs when the transportation project does not 
incorporate land from a section 4(f) resource, but the project's 
proximity impacts are so severe that the protected activities, features, 
or attributes that qualify a resource for protection under section 4(f) 
are substantially impaired. Substantial impairment occurs only when the 
protected activities, features, or attributes of the resource are 
substantially diminished.
    (3) The Administration is not required to determine that there is no 
constructive use. However, such a determination could be made at the 
discretion of the Administration.
    (4) The Administration has reviewed the following situations and 
determined that a constructive use occurs when:
    (i) The projected noise level increase attributable to the project 
substantially interferes with the use and enjoyment of a noise-sensitive 
facility of a resource protected by section 4(f), such as hearing the 
performances at an outdoor amphitheater, sleeping in the sleeping area 
of a campground, enjoyment of a historic site where a quiet setting is a 
generally recognized feature or attribute of the site's significance, or 
enjoyment of an urban park where serenity and quiet are significant 
attributes;

[[Page 416]]

    (ii) The proximity of the proposed project substantially impairs 
esthetic features or attributes of a resource protected by section 4(f), 
where such features or attributes are considered important contributing 
elements to the value of the resource. Examples of substantial 
impairment to visual or esthetic qualities would be the location of a 
proposed transportation facility in such proximity that it obstructs or 
eliminates the primary views of an architecturally significant 
historical building, or substantially detracts from the setting of a 
park or historic site which derives its value in substantial part due to 
its setting;
    (iii) The project results in a restriction on access which 
substantially diminishes the utility of a significant publicly owned 
park, recreation area, or a historic site;
    (iv) The vibration impact from operation of the project 
substantially impairs the use of a section 4(f) resource, such as 
projected vibration levels from a rail transit project that are great 
enough to affect the structural integrity of a historic building or 
substantially diminish the utility of the building; or
    (v) The ecological intrusion of the project substantially diminishes 
the value of wildlife habitat in a wildlife or waterfowl refuge adjacent 
to the project or substantially interferes with the access to a wildlife 
or waterfowl refuge, when such access is necessary for established 
wildlife migration or critical life cycle processes.
    (5) The Administration has reviewed the following situations and 
determined that a constructive use does not occur when:
    (i) Compliance with the requirements of section 106 of the National 
Historic Preservation Act and 36 CFR part 800 for proximity impacts of 
the proposed action, on a site listed on or eligible for the National 
Register of Historic Places, results in an agreement of ``no effect'' or 
``no adverse effect'';
    (ii) The projected traffic noise levels of the proposed highway 
project do not exceed the FHWA noise abatement criteria as contained in 
Table 1, 23 CFR part 772, or the projected operational noise levels of 
the proposed transit project do not exceed the noise impact criteria in 
the FTA guidelines;
    (iii) The projected noise levels exceed the relevant threshold in 
paragraph (p)(5)(ii) of this section because of high existing noise, but 
the increase in the projected noise levels if the proposed project is 
constructed, when compared with the projected noise levels if the 
project is not built, is barely perceptible (3 dBA or less);
    (iv) There are proximity impacts to a section 4(f) resource, but a 
governmental agency's right-of-way acquisition, an applicant's adoption 
of project location, or the Administration approval of a final 
environmental document, established the location for a proposed 
transportation project before the designation, establishment, or change 
in the significance of the resource. However, if the age of an historic 
site is close to, but less than, 50 years at the time of the 
governmental agency's acquisition, adoption, or approval, and except for 
its age would be eligible for the National Register, and construction 
would begin after the site was eligible, then the site is considered a 
historic site eligible for the National Register;
    (v) There are impacts to a proposed public park, recreation area, or 
wildlife refuge, but the proposed transportation project and the 
resource are concurrently planned or developed. Examples of such 
concurrent planning or development include, but are not limited to:
    (A) Designation or donation of property for the specific purpose of 
such concurrent development by the entity with jurisdiction or ownership 
of the property for both the potential transportation project and the 
section 4(f) resource, or
    (B) Designation, donation, planning or development of property by 
two or more governmental agencies, with jurisdiction for the potential 
transportation project and the section 4(f) resource, in consultation 
with each other;
    (vi) Overall (combined) proximity impacts caused by a proposed 
project do not substantially impair the activities, features, or 
attributes that qualify a resource for protection under section 4(f);

[[Page 417]]

    (vii) Proximity impacts will be mitigated to a condition equivalent 
to, or better than, that which would occur under a no-build scenario;
    (viii) Change in accessibility will not substantially diminish the 
utilization of the section 4(f) resource; or
    (ix) Vibration levels from project construction activities are 
mitigated, through advance planning and monitoring of the activities, to 
levels that do not cause a substantial impairment of the section 4(f) 
resource.
    (6) When a constructive use determination is made, it will be based, 
to the extent it reasonably can, upon the following:
    (i) Identification of the current activities, features, or 
attributes of a resource qualified for protection under section 4(f) and 
which may be sensitive to proximity impacts;
    (ii) An analysis of the proximity impacts of the proposed project on 
the section 4(f) resource. If any of the proximity impacts will be 
mitigated, only the net impact need be considered in this analysis. The 
analysis should also describe and consider the impacts which could 
reasonably be expected if the proposed project were not implemented, 
since such impacts should not be attributed to the proposed project;
    (iii) Consultation, on the above identification and analysis, with 
the Federal, State, or local officials having jurisdiction over the 
park, recreation area, refuge, or historic site.
    (7) A temporary occupancy of land is so minimal that it does not 
constitute a use within the meaning of section 4(f) when the following 
conditions are satisfied:
    (i) Duration must be temporary, i.e., less than the time needed for 
construction of the project, and there should be no change in ownership 
of the land;
    (ii) Scope of the work must be minor, i.e., both the nature and the 
magnitude of the changes to the section 4(f) resource are minimal;
    (iii) There are no anticipated permanent adverse physical impacts, 
nor will there be interference with the activities or purposes of the 
resource, on either a temporary or permanent basis;
    (iv) The land being used must be fully restored, i.e., the resource 
must be returned to a condition which is at least as good as that which 
existed prior to the project; and
    (v) There must be documented agreement of the appropriate Federal, 
State, or local officials having jurisdiction over the resource 
regarding the above conditions.

[52 FR 32660, Aug. 28, 1987; 53 FR 11066, Apr. 5, 1988, as amended at 56 
FR 13279, Apr. 1, 1991; 57 FR 12411, Apr. 10, 1992; 70 FR 24470, May 9, 
2005]