Overview

The Department of Transportation Act (DOT Act) of 1966 included a special provision - Section 4(f) - which stipulated that the Federal Highway Administration (FHWA) and other DOT agencies cannot approve the use of land from publicly owned parks, recreational areas, wildlife and waterfowl refuges, or public and private historical sites unless the following conditions apply:

• There is no feasible and prudent alternative to the use of land.
• The action includes all possible planning to minimize harm to the property resulting from use.

Section 4(f) of the Department of Transportation (DOT) Act of 1966 was set forth in Title 49 United States Code (U.S.C.), Section 1653(f). A similar provision was added to Title 23 U.S.C. Section 138, which applies only to the Federal-Aid Highway Program.

Since 1966, Section 4(f) has undergone several changes. The first of these changes was a 1968 amendment to Section 4(f)'s wording-an effort by lawmakers to reconcile the language of 49 U.S.C. Section 1653(f) and 23 U.S.C. Section 138. The wording in the two provisions was somewhat different; therefore, the Federal-Aid Highway Act of 1968 amended the wording in both sections to be consistent. The second change was a result of the 1983 recodification of the DOT Act, in which Section 4(f) became 49 U.S.C. Section 303.

In August 2005, Section 6009(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), made the first substantive revision to Section 4(f) since the 1966 US Department of Transportation Act. Section 6009, which amended existing Section 4(f) legislation at both Title 49 U.S.C Section 303 and Title 23 U.S.C. Section 138, simplified the process and approval of projects that have only de minimis impacts on lands impacted by Section 4(f). Under the new provisions, once the US DOT determines that a transportation use of Section 4(f) property results in a de minimis impact, analysis of avoidance alternatives are not required and the Section 4(f) evaluation process is complete. Section 6009 also required the US DOT to issue regulations that clarify the factors to be considered and the standards to be applied when determining if an alternative for avoiding the use of a section 4(f) property is feasible and prudent. On March 12, 2008 FHWA issued a Final Rule on Section 4(f), which clarifies the 4(f) approval process and simplifies its regulatory requirements. In addition, the Final Rule moves the Section 4(f) regulation to 23 CFR 774.

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