Section 4(f) is national policy that helps preserve the U.S natural resources. The U.S Department of Transportation Act of 1966 gave a special provision for this section and stipulates that the Federal Highway Administration (FHWA) will not approve any program or project that requires the “use” of any publicly owned public park, recreation area, wildlife refuge or historic sites unless;
a.) There is “no feasible and prudent alternative to the project,”
b.) The project includes “all possible planning to minimize harm to the project.
Section 4(f) is therefore considered the strongest preservation law at the federal level.
The term “use” does not only refer to the physical utilization of a property but also the indirect effects that would harm the value of protected sites.
Section 4(f) applies to all transportation agencies within the U.S Department of Transportation, which include;
ü Federal Highway Administration (FHWA) – Funds Highway and bridge projects
ü Federal Transit Administration
ü Federal Transit Administration
ü Coast Guard – Owns and protects many historic lighthouses and has regulatory authority affecting bridges.
Section 4(f) only applies to all publicly owned parks, recreational areas, and wildlife and waterfowl refuges. If owned by private institutions and individuals, even if the said areas are open to the public, Section 4(f) does not apply at all. FHWA do encourage the preservation of privately owned lands. However, if a governmental body has a proprietary interest in the land for instance fee ownership, drainage easements or wetland easement, it can be considered “publicly owned” and thus Section 4 (f) applies.
Section 4(f) has been a frequent issue as we litigate our projects and so the following need to be fully documented:
(1) Applicability/non-applicability of Section 4(f)
(2) The coordination efforts with the officials who have jurisdiction over land administration.
(3) Location and design alternatives that shall avoid or minimize harm to the Section 4(f).
(4) All measures to reduce harm, including design and landscaping.
Michigan Land Use Institute, Coalition for Sensible Growth, and the Environmental Law & Policy Center together with other concerned parties evaluated the Grand Traverse County Road Commission’s Boardman River Crossing Mobility Study Final Environmental Impact Assessment and Section 4(f)/6(f) Evaluation (FEIS). The assessment showed a lot of failure in compliance with National Environmental Policy Act (NEPA), the Michigan Environmental Protection Act (MEPA), and other public laws and regulations. Their findings recommended the rejection of FEIS by Federal Highway Administration (FHWA). They listed the reasons as
1.Segmentation of Traverse City Bypass.
2.Underestimated Impacts to Wetlands and Aquatic Habitat.
3.Improper and Inadequate Section 4(f) Analysis.
4.Flawed Land Use Analysis.
5.Unscientific Population Forecasts.
6.Traffic Modeling Fatally Flawed.
7.Misrepresentation of Public and Local Government Support.
8.Failure to Develop Prudent and Feasible Alternatives.
9.Unreasonable Statement of Purpose and Need.
For more, visit the following web site: http://www.mlui.org/projects/transport/tcbypass/boardmansummary.asp
Reference:
1. Grand Traverse County, Michigan Final Environmental Impact Statement and Section 4(f)/6(f) Evaluation - February 2001. http://www.mlui.org/projects/transport/tcbypass/boardmansummary.asp
2. Section 4F policy paper
http://www.fhwa.dot.gov/environment/4fpol2.htm