129.8 Section 4(f) Lands

Section 4(f) of the Transportation Act of 1966 specifies that a transportation project requiring the use of publicly owned parks, recreation areas, wildlife and waterfowl refuges, and other considerations as determined by FHWA, or publicly or privately-owned historic sites listed or eligible for listing on the National Register of Historic Places can be approved only if there is no feasible and prudent alternative or is a de minimis impact to using that land and if all possible planning is done to minimize harm to the property. These types of properties are often referred to as Section 4(f) resources (refer to EPG 127.10 Section 4(f) Public Lands).

The level of public involvement required for Section 4(f) properties is dependent on how the use of the property will be documented for approval by FHWA. The Environmental and Historic Preservation Section must be consulted for appropriate public involvement for Section 4(f) properties.

For parks, recreation areas, or refuges, when there is a specific or isolated population that uses the Section 4(f) property, a more direct contact approach such as targeted mailing can be used. When it is unknown who uses the property, or the users come from a much larger geographic area, the public involvement requirement may involve a public meeting and/or hearing. If a public meeting or hearing will be used to satisfy the public outreach requirements of Section 4(f), be sure to clearly disclose such in the meeting or hearing notifications and advertisements. Refer to 23 CFR 774.5 (b)(2)(i). For historic properties, public notice and comment, beyond that required in 36 CFR 800, is not obligatory. Refer to (23 CFR 774.5 (b)(1)(iii)).

Historic de minimis

For historic de minimis the public involvement process mirrors the Section 106 public involvement process. Refer to EPG 129.9.

Parks, recreation areas, wildlife and waterfowl refuge de minimis

Parks, recreation areas, wildlife and waterfowl refuges shall have, at a minimum, a public notice and an opportunity for public review and comment. If the project does not require a public meeting, other means must be made to provide the public information on the Section 4(f) resource, impacts on it, and an opportunity to comment on the proposed de minimis determination. The notice shall be a minimum 10-day public notice and comment period and looks similar to the public meeting advertisement. Consult your CR manager for what is most appropriate for the area in question. This information can be made public through a press release in a newspaper, social media posts, comment cards left at the facility, sign-boards, hand-outs, etc. The notice should consider the resource and how the users of that resource are most likely to be reached. The public notice or opportunity for comment may be combined as part of other public involvement for the project, such as for NEPA, if the proposed impacts and findings related to the Section 4(f) properties have been determined.

If a public meeting is held, the materials at the public meeting should include information that identifies parks as Section 4(f) properties, identifies the characteristics of any parks in the project area, and include that a de minimis determination will be sought under 23 CFR 774.

The 4(f) evaluation shall be provided to the official with jurisdiction (OWJ) over the 4(f) property for coordination and comment. The OWJ(s) cannot approve the use of the property until after the public comment period has ended and public feedback has been provided. Any comments shall be addressed in the de minimis documentation. The public feedback must be provided to the OWJ(s) for consideration as part of the evaluation. The de minimis evaluation form, maps, OWJ concurrence, and the public involvement materials are submitted to FHWA for comment and approval. The materials are then included in the NEPA administrative record and/or the RES for the project.

Programmatic Evaluation

The project shall include public involvement activities that are consistent with the specific requirements of 23 CFR 771.111, Early coordination, public involvement and project development. For a project where one or more public meetings or hearings are held, information on the proposed use of the Section 4(f) property shall be communicated at the public meeting(s) or hearing(s).

Temporary Occupancy

There are no regulatory requirements for public involvement for the temporary occupancy of a Section 4(f) resource. If a Section 4(f) resource will be used in such a matter, and it is known prior to a public meeting, the public meeting should include information on the Section 4(f) resource and the nature of impacts and how the resource will not be permanently damaged by the project.

Individual Section 4(f)

If an Individual Section 4(f) Evaluation is part of an EA or EIS, the draft Section 4(f) is included in the document which is made available for the public, and the public comment periods and methods overlap. 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. The approved draft Section 4(f) Evaluation is provided to the U.S. Department of the Interior (DOI) for comment. A 45-day public comment period runs concurrently with the DOI review and comment. Typically, the notice is similar to a public meeting advertisement. 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).

If the project is a CE, there is a 30-day public comment period during the 45-day DOI review period, usually they end on the same date. A notice about the availability of the document is placed in the local newspaper and MoDOT website, an electronic copy of the document is placed on the project website, and a hard copy is placed in a local repository (city hall, county courthouse or public library). For CE projects, the environmental specialist prepares a separate Final Section 4(f) Evaluation. Comments should be sent by letter to the District Engineer. FHWA approval of the Final Section 4(f) Evaluation is integrated with location approval, which allows detailed design to begin.