Section 4(f) Process

Environmental process | Environmental review | Section 4(f)

Forms and templates

Officials With Jurisdiction (OWJ)

Public Involvement

Programmatic Section 4(f) Evaluations

Individual Section 4(f) Evaluation

1. Introduction

Section 4(f) of the Department of Transportation Act of 1966 is a federal law and only applies to projects with federal involvement. It’s intention is to prevent conversion of certain parks, wildlife and waterfowl refuges, recreation areas or historic properties to transportation use, unless the U.S. Department of Transportation (U.S. DOT) determines there is no feasible and prudent alternative, and all possible planning has been done to minimize harm to properties Section 4(f) cover.

With the start of each NEPA process for a proposed project, a plan to address Section 4(f) compliance should be developed as part of the environmental review. Typically, this starts with a review of the project study area for potential Section 4(f) properties. This guidance document provides step-by-step instructions for determining if Section 4(f) applies to a proposed project and the steps to complete a Section 4(f) analysis, if needed.

2. Does Section 4(f) apply?

Section 4(f) applies if the answer is “yes” to all of the following questions:

Is there U.S. DOT involvement?
Are there Section 4(f) properties in, or nearby, the project area?
Are there potential impacts to Section 4(f) properties?

FHWA has the final determination regarding Section 4(f) impacts and applicability. Since Section 4(f) issues can be complex, if in doubt about Section 4(f) applicability consult with the MnDOT Office of Environmental Stewardship (OES).

2.1 Is there U.S. DOT involvement?

Any action by FHWA (or any other U.S. DOT agency) constitutes U.S. DOT involvement. Such actions include:

Using federal transportation funds on the project
Needing permit or approval from a U.S. DOT agency (including any that the USDOT agency has delegated to MnDOT)

If there is no U.S. DOT involvement, then Section 4(f) does not apply. Complete the Section 4(f) Applicability Checklist for the Project File.

If there is U.S. DOT involvement, continue.

Are there Section 4(f) properties in, or nearby, the project area?

2.2.1 Identify potential Section 4(f) properties within, or nearby the project area

The project area includes any areas impacted by the project, such as the project footprint, potential construction staging areas and stormwater ponds. Section 4(f) properties adjacent to and nearby the project also need to be identified. Although impacts under Section 4(f) to these properties are rare, it is important that they be captured in the analysis.
Possible Section 4(f) resources include:

Publicly-owned

Parks and recreation areas
Wildlife or waterfowl refuges
Wildlife management areas
School playgrounds
Fairgrounds
Public multiple-use land holdings
Wild and scenic rivers
Planned facilities
Bikeways (recreational)
Trails
Public golf courses

Public or private cultural resources
- Historic sites
- Historic bridges and highways
- Archeological resources
- Historic or archeological districts
- Historic trails
- Landscapes
- Traditional cultural properties

If there are no Section 4(f) properties in the vicinity of the project, no further information is required. Complete the Section 4(f) Applicability Checklist to document this for the project file.

If there is Section 4(f) property on or near the project, continue.

2.2.2 Determine if any of the identified properties meet Section 4(f) criteria

If in doubt regarding Section 4(f) applicability of any property, consult with OES. All of the following must be true for the type of property for it to be a Section 4(f) property:

Park and/or recreation area:

Is publicly owned. “Publicly owned” includes situations where the facility/land is privately owned, but a public agency has a long-term interest (lease, permit) as determined by FHWA. For complicated situations, provide the following materials to assist FHWA in making a determination: description/visual of the resource; breakdown of who owns what portion in fee title; copies of the actual leases/permits/easements for any remaining portion; description of which portion(s), if any, of facility are not owned in fee title and are thought to be there by easement (or similar instrument) when there is no record of any easement (or similar instrument).
Is open to the public. Public access may be restricted to preserve or protect wildlife and waterfowl. This could be for certain times of the year or certain locations within the property.
Has park and recreational activities as the major purpose of the property.
Is significant in meeting park or recreation objectives (according to the opinion of the Official With Jurisdiction [OWJ] over the property, although U.S. DOT agency makes the final determination). See Glossary for OWJ definition.

Historic sites and other cultural resources:
- May be Section 4(f) properties whether publicly or privately owned
- May be Section 4(f) if ANY of the following are true: .
  - Listed on – or eligible for listing on – the National Register of Historic Places (NRHP) (36 CFR 800.16).
  - Has local historical significance (even if not NRHP-listed or eligible):
    - FHWA makes the determination whether or not the application of Section 4(f) is appropriate when an official (such as the Mayor, president of the local historic society, etc.) formally provides information to indicate that a historic site (that is not NRHP-listed or eligible) is of local significance
      - If the local official provides such information, contact OES who will coordinate with MnDOT Cultural Resources Unit (CRU) and FHWA regarding potential Section 4(f) applicability and subsequent steps

Archeological sites (including sites discovered during construction) if both of the following are true:

On or eligible for listing on the NRHP
Warrant preservation in place

The actual determination of historic properties or other cultural resources listed or eligible for listing on the NRHP must be done by the MnDOT CRU (under the Section 106 review) per the terms of the 2015 Section 106 General Agreement , see Cultural Resources (Archaeology and Historic Resources).

2.2.3 Conduct research

Conduct document searches of city and county comprehensive and park plans and coordinate with the OWJ over the park, recreation area, or wildlife/waterfowl refuge property to gather information relevant to whether or not the property is subject to Section 4(f), specifically information about:

Ownership, including leasing arrangements, and boundaries of the property
Openness to the public
Main purposes of the property
Significance of the property in the context of local and regional recreational or refuge resources and objectives. FHWA will presume the property to be significant unless the OWJ finds that the entire property is not significant. The FHWA will make an independent evaluation of the reasonableness of an OWJ finding regarding significance.

Information that may be helpful:

Management plan for the property
Any Section 6(f) involvement, see Section 6(f))

For historic properties, MnDOT CRU coordinates with the Minnesota State Historic Preservation Office (SHPO) and/or the appropriate Tribal Historic Preservation Officer(s) (THPO). At present, the OWJ for historic properties is as shown in the table below.

SHPO vs THPO: Who is the Section 4(f) OWJ for Historic Properties Within Federally- Recognized Reservation Boundaries or Exterior Trust Lands?

Federally-Recognized Tribe	Architectural Historic Property	Archaeological Historic Property
Bois Forte	THPO	THPO
Fond du Lac	THPO	THPO
Grand Portage	THPO	THPO
Leech Lake	SHPO	THPO
Lower Sioux	THPO	THPO
Mille Lacs	SHPO	THPO
Prairie Island	THPO	THPO
Red Lake	THPO	THPO
Shakopee Mdewakanton Sioux	SHPO	SHPO
Upper Sioux	THPO	THPO
White Earth	SHPO	THPO

Background: Minnesota has 11 federally-recognized tribes. All but one (Shakopee Mdewakanton Sioux) have acquired THPO status from the NPS per Section 101(d) of the NHPA. Leech Lake, Mille Lacs, and White Earth have only partially assumed the duties of the SHPO. This is sometimes informally referred to as a "split review." These three have only assumed the duties of the SHPO for archaeological resources within federally-recognized reservation boundaries and exterior trust lands. The SHPO still has the formal Section 106 concurrence action on non-archaeological historic properties within those three reservations and any associated exterior trust lands. Therefore, the SHPO will still be the OWJ for architectural historic properties within Leech Lake, Mille Lacs, and White Earth lands.

Note: This table assumes a scenario where the resource has at-most two OWJs consisting of the SHPO and/or THPO. It does not reflect the situation where the Advisory Council on Historic Preservation (ACHP) and/or the National Park Service (NPS) might be OWJs in addition to the SHPO/THPO.

2.3 Are there potential impacts to the Section 4(f) properties?

The term “use” is often used in Section 4(f) instead of “impact.” Transportation uses of Section 4(f) properties include:

2.3.1 Permanent real property interest acquisition

This “use” includes acquisition of all or part of the property as right of way, permanent easement, long-term lease or similar permanent conversion into a transportation project. It also includes permanent conversion of Section 4(f) land into a transportation facility even though ownership of property rights does not change hands, such as when a City or County is both the owner of the Section 4(f) land and the proposer of the federally funded transportation project for which the land conversion is proposed.

2.3.2 Temporary Occupancy

A temporary occupancy is when the Section 4(f) property is required for construction-related activities and is not permanently incorporated into the transportation project. A temporary occupancy is a Section 4(f) “use” if the temporary occupancy is adverse in terms of the Section 4(f) statute’s preservationist purposes. In other words, a temporary occupancy does not constitute a “use” if ALL of the conditions of 23 CFR 774.13(d) are true, as follows:

Duration is temporary (i.e., less than time needed for project construction)
No change in ownership of the land
Scope of work is minor (i.e., the nature and magnitude of the changes to the resource during construction are minimal)
No anticipated permanent adverse physical impacts
No interference with the activities or purpose of the resource (either temporary or permanent)
The land used will be fully restored to a condition at least as good as before the project, and
There is documented agreement from the official with jurisdiction (OWJ) over the resource regarding the above conditions

The “non-use” temporary occupancy is documented in the environmental document, including detail of how 23 CFR 774.13(d) conditions are met and the relevant correspondence.

Temporary occupancy is a “use ” if any of the above conditions are not met. In this case, the NEPA document will need to include the appropriate Section 4(f) analysis. In other words, the NEPA documentation will not refer to the situation as ‘temporary occupancy” if any of the above conditions are not met.

Always consult OES if you anticipate that your project will involve a temporary occupancy of a Section 4(f) resource. OES can provide additional correspondence examples if needed, (e.g., for temporary occupancy of water trails/designated canoe routes.)

Use the appropriate Request for Temporary Occupancy Concurrence letter for Parks and Recreational Facilities or Request for OWJ Temporary Occupancy Concurrence for Historic Sites letter in the Forms section above to solicit agreement from the OWJ for projects that do not constitute a use because the 23 CFR 774.13(d) conditions are met. OES will coordinate FHWA review of the draft correspondence, as applicable. Written agreement from the OWJ(s) is required for the project file. See Section 4.2 for review and approval requirements. If the OWJ is the MnDNR, use the process outlined at MnDNR/MnDOT Coordination for Section 4(f) Concurrence.

2.3.3 Constructive Use

Constructive use is when a project does not directly incorporate any Section 4(f) resource land (i.e., the land is nearby or adjacent to the project), but proximity impacts of the project substantially impair activities, features, or attributes of the nearby resource that qualify it for Section 4(f). Potential constructive use scenarios include, but are not limited to, noise or visual impacts. See 23 CFR 774.15 for the regulations regarding constructive use determination and MnDOT’s Noise Impact Analysis Guidance for Section 4(f) Properties Where Quiet is Important. Consult with OES if you have questions about constructive use. FHWA makes the determination regarding constructive use; therefore, early consultation with FHWA is important.

2.3.4 Other “Use” Considerations

As part of the process to identify potential Section 4(f) uses, also consider the following areas:

Joint development
Air rights
Late discovery
Late designation
Wetland mitigation
Tunneling
Boat access ramps
Transportation enhancement activities

2.4 Conclusion

If all of the following are true, then Section 4(f) applies:

There is U.S. DOT involvement
There are Section 4(f) properties in, or nearby, the project area
There is a temporary occupancy or a use of Section 4(f) properties

If in doubt about Section 4(f) involvement, contact OES. Remember, FHWA has final responsibility for determining if Section 4(f) applies to a property and if there are impacts.

If there are no Section 4(f) properties in the vicinity of the project, no further analysis is required. Fully document your findings using the Section 4(f) Applicability Checklist and retain in the project file.

2.5 Prepared Statements

Use the following statement if there are no Section 4(f) properties in, or nearby, the project area or if there are Section 4(f) properties, however there is not a Section 4(f) use:

This project has been reviewed to determine if Section 4(f) applies. Based on this review a determination has been made that the project would not result in the use of Section 4(f) property, including a constructive use.

If Section 4(f) applies, continue.

3. If Section 4(f) Applies

If a Section 4(f) “use” as defined in 23 CFR 774.17 applies to a project, FHWA cannot approve the use unless a determination is made based on either:

FHWA determines that the use of the Section 4(f) property will have a de minimis impact on the property (see 23 CFR 774.3(b)). If FHWA makes a de minimis impact determination, a full Section 4(f) Evaluation is not required. The process and documentation requirements for a de minimis impact determination are detailed under Section 3.1.

FHWA determines that the use of the Section 4(f) property will not be de minimis and:

There is no feasible and prudent alternative that avoids use of the Section 4(f) resource, and
All possible planning has been done to minimize harm to the Section 4(f) property

“Feasible” means the alternative can be built as a matter of sound engineering judgment. (See 23 CFR 774.17.)

An alternative may not be “prudent”if it does any of the following (See 23 CFR 774.17.):

It compromises the project to a degree that it is unreasonable to proceed in light of the project’s stated purpose and need (i.e., the alternative does not address the purpose and need of the project);
It results in unacceptable safety or operational problems;
It causes severe social, economic, or environmental impacts (after reasonable mitigation);
It causes severe disruption to established communities (after reasonable mitigation);
It causes severe or disproportionate impacts to minority or low-income populations (after reasonable mitigation);
It causes severe impacts to environmental resources protected under other Federal statutes (after reasonable mitigation);
It results in additional construction, maintenance, or operational costs of an extraordinary magnitude;
It causes other unique problems or unusual factors; or
There is an accumulation of factors that collectively, rather than individually, cause unique problems or impacts of extraordinary magnitude.

A Programmatic or Individual Section 4(f) Evaluation will need to be completed. Section 3.2.1 describes the process to complete a Programmatic Section 4(f) Evaluation and Section 3.2.2 describes the process to complete an Individual Section 4(f) Evaluation.

3.1 Is the use a de minimis impact?

Consult with OES if considering de minimis and review the Documentation Matrix. De minimis may be used for any class of action and on any project type. A de minimis finding can be made for permanent or temporary impacts, but cannot be made for constructive use. FHWA makes the de minimis finding. The OWJ over the affected Section 4(f) property must concur with the information regarding the impacts assessment of the project on the Section 4(f) property that FHWA uses as the basis for the de minimis impact determination.

De minimis is a two-step process: (1) FHWA declares an intent to make a de minimis determination subject to a review period; and (2) following the review period, FHWA issues its de minimis determination.

There are two types of Section 4(f) de minimis impact findings:

For Parks, Recreation Areas and Wildlife Refuges
For Historic Sites

3.1.1 De Minimis Determination Process for Parks, Recreation Areas, Waterfowl and Wildlife Refuges

For Parks, Recreation Areas, Waterfowl and Wildlife Refuges, impacts are de minimis if the impacts do not adversely affect the activities, features and attributes of the resource. For each potential use, it is advisable to investigate and engage the OWJ in identifying ways to reduce the impact to result in a likely de minimis finding, (i.e., to not adversely affect the activities, features and attributes of the resource.) The de minimis determination considers mitigation and enhancement measures.

See the De Minimis Workflow for Parks, Recreation and Wildlife flow chart for the process for completing a de minimis impact determination.

Conduct research and assemble required information.

Identify the Section 4(f) property’s features, attributes and activities. This should be done in consultation with the OWJ.
Work to minimize impacts to the Section 4(f) property and identify proposed mitigation for impacts and any proposed enhancements for the Section 4(f) property. (See Appendix: Avoidance, Minimization & Mitigation of Section 4(f) Properties).

Prepare the Request for FHWA De Minimis Determination for Parks letter.

The request letter includes description of the Section 4(f) property, project impacts to the property (activities, features and attributes), and relevant considerations of avoidance, minimization of harm, mitigation and enhancements.
The request letter also requires documentation of the coordination meetings and activities with the OWJ. Consultation with the OWJ must begin early in the project environmental review process. Before public involvement, the project team and the OWJ should be in general agreement as to the potential level of impacts to the Section 4(f) property as well as have general agreement concerning avoidance, minimization, mitigation, and enhancement measures that could make a de minimis finding more likely. The purpose of this is to inform FHWA’s consideration of whether a de minimis finding is appropriate, pending public review. If the OWJ is not in agreement that the impacts are de minimis, FHWA can proceed with the notice of intent to make a de minimis determination and begin the public review period. However, if the OWJ is not supportive of the de minimis finding, this information must be provided to OES and FHWA as soon as this is identified. If it appears likely that the OWJ will not concur with the preliminary de minimis finding (regardless of public input and/or reasonable mitigation), the impact becomes a Section 4(f) use and cannot be de minimis. It is best to identify and discuss this by all parties early rather than lose schedule time pursuing a de minimis course that would likely be unsuccessful.
If the OWJ is the MnDNR, use the process outlined at MnDNR/MnDOT Coordination for Section 4(f) Concurrence.

Submit the Request for FHWA De Minimis Determination for Parks letter to OES. OES will review and submit to FHWA for its preliminary determination (“Intent to make a de minimis determination”).
FHWA signature on the Request for FHWA De Minimis Determination for Parks letter will indicate FHWA’s intent to make a de minimis determination conditioned on public review and comment. The project team will provide a copy of the signed request to the OWJ, FHWA and MnDOT OES. Should the de minimis impact involve tribal property, FHWA will transmit all correspondence. This is the first of the two actions that FHWA must take in the de minimis process.
Include de minimis write up in the environmental document.
- EAs and EIS - include description of the preliminary determination (FHWA’s intent to make a de minimis determination) and relevant correspondence in the document for publication. The final determination will be included in the FONSI or the ROD.
- CatEx – include the final determination; a CatEx cannot be approved until the public comment period concludes and final determination and final OWJ concurrence received -- see next steps.
Public Notice and Opportunity for Comment.
- EA and EIS – include intent of de minimis determination in public hearing notices for EA or Draft EIS
- Categorical Exclusion – Publish de minimis ad in a newspaper of general circulation in the project area for a minimum of 14 days for the comment period; see De Minimis Public Notice Sample. It is also recommended to provide notice of the opportunity to comment on the intended de minimis determination at other locations such as the project website, notice boards on the affected park property, at the city hall, etc.
- For public meetings, open houses, or other formal public activities being used to meet the public notice and comment requirements for a de minimis finding, the properties and the impacts and avoidance, minimization, mitigation, and enhancement activities related to the properties must be individually discussed and public comment requested, in addition to receiving comments on the NEPA document.
Following the comment period, submit a draft FHWA OWJ De Minimis Concurrence Request for Parks letter to OES. OES will review and submit the draft letter to FHWA for its use in securing final concurrence from the OWJ which it needs in order to finalize the de minimis determination. This is the second of the two actions that FHWA must take in the de minimis process. FHWA will advise MnDOT when it has secured OWJ concurrence and finalized its de minimis determination. Note that the OWJ has 30 days to respond following receipt of the FHWA letter.
Once FHWA has secured OWJ concurrence and finalized its de minimis determination, complete the final environmental document (CatEx, FONSI package or ROD).

FONSI package or ROD: Include new information about the de minimis process that occurred since the EA or EIS publication, i.e., public review, final de minimis determination and OWJ concurrence. Include all relevant notices and correspondence. The FONSI will be titled “Finding of No Significant Impact and Section 4(f) De Minimis Determination”. The ROD will be titled “Record of Decision and Section 4(f) De Minimis Determination”.
CatEx: Include information about the entire de minimis process, i.e. the preliminary determination, the public review, the final determination and final OWJ concurrence. Include all relevant notices and correspondence. Title the document: “Categorical Exclusion Determination and Section 4(f) De Minimis Determination”.

3.1.2 De Minimis Determination Process for Historic Sites

For Historic Sites, impacts are de minimis under the following conditions:

The project must have Section 106 determination of “no historic properties affected” (includes “no properties” and “no effect” determinations) or “no adverse effect.” Section 106 does not specifically apply to locally-designated properties; however, for purposes of the Section 4(f) review, similar determinations of effect and concurrence actions will be required.
The OWJ, i.e., SHPO or THPO (and ACHP and/or NPS, if participating), or the local agency for locally-significant properties:
- must concur with the finding in accordance with 36 CFR Part 800. Under the current (2015) Section 106 Programmatic Agreement (PA) (also referred to as the “General Agreement” to distinguish from project-specific Section 106 PAs), this requirement is satisfied by concurrence correspondence for “no adverse effect” determinations. Under the PA, the SHPO waives its review and concurrence action role for an undertaking where a “No Historic Properties Affected” (i.e. “no properties” or “no effect”) finding is made by MnDOT CRU. As there is no similar agreement with local agencies for locally-designated properties not subject to Section 106, written concurrence would be needed for “No Historic Properties Affected” (i.e. “no properties” or “no effect”) and “No Adverse Effect” determinations.
- must be informed of FHWA’s intent to make a de minimis impact determination based upon their concurrence with the Section 106 determination.

Assemble required information.
- For properties that are listed or eligible for listing on the NRHP, the information needed for the Request for FHWA De Minimis Determination for Historic Sites letter will be available in the project’s Section 106 correspondence (MnDOT CRU determination and, in the case of “no adverse effect” determinations, SHPO or THPO concurrence correspondence).
- If FHWA has determined that a locally-designated property that is not subject to Section 106 is subject to Section 4(f), OES will coordinate with FHWA and MnDOT CRU regarding securing MnDOT CRU’s determination of effect and consultation with the local agency OWJ (SHPO/THPO or local agency).
Prepare the Request for FHWA De Minimis Determination for Historic Sites letter. The request letter includes descriptions of the Section 4(f) property, project impacts to the property, and coordination with the OWJ.
Prepare the draft Notice of Intent to Make Determination of De Minimis Impact to Historic Site letter The letter briefly explains the de minimis process and offers an opportunity for additional OWJ comment prior to FHWA’s final determination regarding the applicability of de minimis.
Submit the Request for FHWA De Minimis Determination for Historic Sites letter and draft Notice of Intent to Make Determination of De Minimis Impact to Historic Site letter to OES. OES will review and submit to FHWA for a preliminary determination (“Intent to make a de minimis determination”) and notice to the OWJ.
FHWA signature on the FHWA De Minimis Determination for Historic Sites letter will indicate FHWA’s intent to make a de minimis determination conditioned on results of notice to the OWJ. FHWA will provide a copy of the signed request letter along with the notice cover letter to the OWJ as well as to MnDOT OES and the project proposer.
Include de minimis write up in the environmental document
- EA and EIS – will describe only the preliminary determination (FHWA’s intent to make a de minimis determination); the final determination will be included in the FONSI or the ROD. Relevant FHWA and OWJ correspondence is included in the EA and Findings of Fact and Conclusions document or EIS and ROD, as applicable
- Categorical Exclusion – will only include the final determination; the Categorical Exclusion cannot be approved until final determination received.
Public Notice and Opportunity for Comment.
- The de minimis process for historic sites does not require the same public comment on an intent to make a de minimis determination that is required for a non-historic Section 4(f) resource. The minimum “public comment” requirements are met by following the Section 106 process with all relevant consulting parties. OWJ comment is the primary consideration. Therefore, the intent is not typically publicly noticed.
- In certain circumstances, it may be appropriate to see public comment beyond the formal Section 106 consulting parties. This would typically take place through the Section 106 process. Consult with OES regarding notice needs for a historic sites de minimis process.
If FHWA finalizes its de minimis determination following the OWJ review of FHWA’s Notice of Intent to Make Determination of De Minimis Impact to Historic Site, include the de minimis determination along with relevant correspondence in the CatEx, FONSI or ROD. The final CatEx document should be titled, “Categorical Exclusion Determination and Section 4(f) De Minimis Determination.”

3.2 Is the use greater than a de minimis impact?

If de minimis does not apply, the Section 4(f) evaluation process must be followed to determine whether there is a feasible and prudent alternative, and, if not the project will result in a use and all possible planning must be done to minimize harm to the Section 4(f) property.

The Section 4(f) evaluation process involves either applying a Programmatic Evaluation or conducting an Individual Evaluation, depending on project specifics.

3.2.1 Does a Programmatic Section 4(f) Evaluation apply?

For projects with a Section 4(f) use that is not de minimis, first determine if a Programmatic Section 4(f) Evaluation could apply.

Programmatic Section 4(f) Evaluations are time-saving alternatives to preparing Individual Section 4(f) Evaluations for certain minor uses of Section 4(f) property. Programmatic Section 4(f) Evaluations are developed by the FHWA based on experience with many projects that have a common fact pattern from a Section 4(f) perspective. An approved Programmatic Section 4(f) Evaluation may be relied upon to cover a particular project only if the specific conditions in that nationwide programmatic evaluation are met (summarized below).

There may be projects where either a Programmatic Section 4(f) Evaluation applies or a de minimis determination is appropriate; for these projects, consult with OES regarding the best path. In addition, consult OES if the project potentially involves multiple Section 4(f) resources and/or alternatives, as a single Individual Section 4(f) Evaluation may be the appropriate path.

The Documentation Matrix will help to determine if a Section 4(f) Programmatic Evaluation can be used, along with the following summary. Consult with OES to determine that the project may use a Section 4(f) Programmatic Evaluation and/or if there are questions.

3.2.1.1 Nationwide Programmatic Evaluations

FHWA has issued five nationwide Programmatic Section 4(f) Evaluations:

Section 4(f) Statement and Determination for Independent Bikeway or Walkway Construction Projects, May 23, 1977
- Project types allowed: Only on independent Bikeway / Walkway projects, not incidental part of highway project
- Resources allowed: Only for parks / recreation areas (not for wildlife / waterfowl refuges or historic sites)
- Extent of impacts: Only if no use of critical habitat or federally-listed species and if no unusual circumstance (e.g. major impacts, controversy)
- Can be used for Class II (CatEx) or Class III (EA) projects
Programmatic Section 4(f) Evaluation and Approval for FHWA Projects that Necessitate the Use of Historic Bridges, July 5, 1983
- Project types allowed: Rehabilitation or replacement of historic bridges
- Resources allowed: Historic bridges that are not National Historic Landmarks
- Extent of impacts:
  - If there will be a use of (adverse effect to) a historic bridge to be replaced or rehabilitated, Section 4(f) applies and the Alternatives, Findings and Mitigation requirements for application of the programmatic Section 4(f) must be met;
    - In deciding whether or not a proposed use of a historic bridge may be covered by the nationwide Programmatic Section 4(f) Evaluation, FHWA Minnesota Division may, at its discretion, expand the applicable reasons why an avoidance alternative is not feasible and/or prudent to include the definitions found in 23 CFR 774. Historic bridge projects require early and on-going consultation with OES and FHWA to determine and facilitate whether the programmatic or the Individual Section 4(f) Evaluation process applies.
  - If bridge is replaced, the existing bridge must be made available for alternative use (contact OES for assistance with this “marketing process” requirement);
  - If bridge can be rehabilitated without affecting historic integrity, Section 4(f) does not apply.
- Can be used for Class I (EIS), Class II (CatEx) or Class III (EA) projects.
- Cannot be used for non-highway bridges (e.g. bridges that only carry rail traffic, bike/pedestrian-only bridges).
Final Nationwide Section 4(f) Evaluation and Approval for Federally-Aided Highway Projects with Minor Involvements with Public Parks, Recreation Lands, and Wildlife Refuges and Waterfowl Refuges, December 23, 1986

Project types allowed: Projects that improve the operating characteristics, safety, and/or physical condition of an existing highway on essentially the same alignment.
Resources allowed: Parks, recreation lands, and waterfowl and wildlife refuges that are adjacent to an existing [road] facility
Extent of impacts: The amount of property to be acquired or used is limited:

Total size of Section 4(f) Site	Maximum to be Acquired / Used
<10 acres	10% of site
10 – 100 acres	1 acre
>100 acres	1% of site

Can be used for Class II (CatEx) or Class III (EA) projects

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

Project types allowed: Improvement of operating characteristics, safety, and/or physical condition of an existing highway on essentially the same alignment.
Resources allowed: Historic sites adjacent to an existing (road) facility
Impact limits:

The project must not remove or alter historic buildings, structures or objects; or archeological resources important for preservation in-place.
There must be a determination of “no effect” or “no adverse effect” via the Section 106 process

Can be used for Class II (CatEx) or Class III (EA) projects

Section 4(f) Evaluation and Approval for Transportation Projects That Have a Net Benefit to a Section 4(f) Property, April 20, 2005

Project types allowed: All project types.
Resources allowed: All Section 4(f) resources
Extent of impacts:

No impact limits, but project must result in an overall enhancement to the resource, when compared to both the future do-nothing or avoidance alternatives and the present condition of the Section 4(f) property, considering the activities, features and attributes that qualify the project for Section 4(f) protection. If the resource has a master plan or other documentation of purpose, it will provide context for this enhancement assessment.
For historic resources the project doesn’t necessarily require a “no effect” or “no adverse effect” determination, but property must remain eligible for National Register of Historic Places.

Can be used for Class I (EIS), Class II (CatEx) or Class III (EA) projects

3.2.1.2 Process Overview

Documentation required to apply a Programmatic Section 4(f) Evaluation must support specific programmatic criteria that the project meets (See 23 CFR 774.3(d)(1)). This includes assessment whether there is a feasible and prudent avoidance alternative and that all possible planning to minimize harm applies. See Section 3.2.1.3 for documentation guidance for completing a Programmatic Evaluation

3.2.1.2.1 Feasible and Prudent Avoidance Alternatives

Projects covered by the Independent Bikeways/Walkways Programmatic Section 4(f) Evaluation do not require project-specific consideration of avoidance alternatives, as the Programmatic Evaluation has already concluded that there is no feasible and prudent alternative to these projects.

Projects covered by any of the other four programmatic Section 4(f) Programmatic Evaluations must consider these three avoidance alternatives (this is an all-inclusive list; see each programmatic evaluation for the specific wording):

No Build (do nothing)
Improving the facility without using the Section 4(f) property
Building on a new location without using the Section 4(f) property

If there is a feasible and prudent avoidance alternative, it must be selected, and the Programmatic Section 4(f) Evaluation cannot be used. See Glossary for definitions of “feasible” and “prudent”. See Appendix: Avoidance, Minimization & Mitigation of Section 4(f) Properties for list of ways to avoid use.

If there is no feasible and prudent avoidance alternative, document the avoidance strategies considered but not used, and why they were not prudent and feasible.

3.2.1.2.2 All Possible Planning to Minimize Harm to the Section 4(f) Property:

All possible planning, (23 CFR 774.17) means that all reasonable minimization and mitigation measures identified in the Section 4(f) evaluation must be included in the project.

Minimization of harm may entail design modifications that reduce the amount of Section 4(f) property used and mitigation measures that compensate for residual impacts. Minimization and mitigation measures should be determined through consultation with the OWJ. See Appendix: Avoidance, Minimization & Mitigation of Section 4(f) Properties for ways to minimize and mitigate impacts.

Projects covered by the Independent Bikeways/Walkways Programmatic Section 4(f) Evaluation rely on the required agreement from the OWJ over the Section 4(f) property as the documentation that the project will include all possible planning to minimize harm. No additional minimization or mitigation is required.

Projects covered by any of the other four programmatic Section 4(f) evaluations need to demonstrate that the proposed action includes all possible planning to minimize harm as defined by the applicable programmatic evaluation.

3.2.1.2.3 OWJ Coordination

Projects proposed to be covered by any of the five Programmatic Section 4(f) Evaluations require concurrence from the OWJ.
Letters are provided in the “Forms and Templates” section for use in soliciting this concurrence for projects proposed to be covered by the Independent Walkway/Bikeway, Minor Use of Parks, or Net Benefit programmatic Section 4(f) evaluations. Provide a draft of the letter to OES for coordination of FHWA review prior to submitting to the OWJ.
Section 106 SHPO/THPO concurrence correspondence fulfills the Section 4(f) OWJ concurrence requirement for projects proposed to be covered by the Historic Bridge or the Minor Use of Historic sites Programmatic Section 4(f) Evaluations.

3.2.1.3 Documentation

A separate Section 4(f) document is not required but the NEPA document must indicate that Section 4(f) compliance was satisfied by the applicable programmatic evaluation (See 23 CFR 774.7(f)). The necessary information supporting the applicability of the programmatic evaluation will be retained in the project file, including records of public involvement and OWJ coordination, as applicable.

The Section 4(f) Programmatic Evaluations are available at: Environmental Review Toolkit (dot.gov) and under the “Forms and Templates” section above, 3.2.2.

3.2.2 Is an Individual Section 4(f) Evaluation required?

For projects with a Section 4(f) use that is neither de minimis nor covered by a Programmatic Section 4(f) Evaluation, an Individual Section 4(f) Evaluation must be completed. The Individual Section 4(f) Evaluation considers avoidance alternatives and, if avoidance is not prudent and feasible, determines which alternative causes the least harm and includes all possible planning to minimize harm.

3.2.2.1 Process Overview

3.2.2.1.1 Feasible and Prudent Avoidance Alternatives

For projects covered by an Individual Section 4(f) Evaluation, avoidance alternatives include the No Build Alternative and a reasonable range of project alternatives that meet the purpose and need of the project. Depending on the project context these may include location alternatives, alternative actions, alignment shifts, and design changes. A project alternative that avoids on Section 4(f) property by using another Section 4(f) property is not an avoidance alternative.

If there is an alternative that avoids the Section 4(f) property entirely, that alternative must be selected if it is both feasible and prudent. Otherwise, the evaluation must document why avoidance is not prudent and feasible.

3.2.2.1.2 All Possible Planning to Minimize Harm to the Section 4(f) Property

If there are no feasible and prudent avoidance alternatives, all possible planning to minimize harm must be completed. This can include alternative design modifications that reduce the amount of Section 4(f) property uses and mitigation measures to compensate for impacts. Mitigation measures should be developed in consultation with the OWJ(s).

3.2.2.1.3 Select Alternative that Causes the Least Overall Harm

If there is no feasible and prudent avoidance alternative, then FHWA may approve, from among the remaining alternatives that use Section 4(f) property, only the alternative that causes the least overall harm. Seven factors must be compared for this. The first four factors relate to net harm that each alternative would cause, and comparable mitigation measures can be factored, where possible:

The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property);
The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection;
The relative significance of each Section 4(f) property; and
The views of the officials with jurisdiction over each Section 4(f) property.

The remaining three factors consider issues beyond Section 4(f):

The degree to which each alternative meets the purpose and need for the project;
6) After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f); and
Substantial differences in costs among the alternatives.

3.2.2.1.4 OWJ Coordination

OWJ coordination is required prior to FHWA approving the Individual Evaluation. This includes consultation on minimization and mitigation measures and review of the draft evaluation.

3.2.2.2 Documentation

All relevant analysis and correspondence should be saved in the project file to provide evidence that the substantive requirements have been met, including public involvement and OWJ coordination.

Draft Individual Section 4(f) Evaluation – See document template located under “Forms and Templates”.
Final Individual Section 4(f) Evaluation – See document template located under “Forms and Templates”.

4. Processing Section 4(f) Documents

4.1 Agency Involvement

Section 4(f) must include evidence of substantial coordination between MnDOT staff and the OWJ for the Section 4(f) resource. This coordination must include:

Specific meetings and/or agenda items on Section 4(f)
Consultation on "Measures to Minimize Harm"
Letters and communications with the OWJ related to Section 4(f)

4.1.1 Parks, recreation area and wildlife or waterfowl refuges

The OWJ is normally a park board, the city council, MnDNR, U.S. Fish and Wildlife Service or some similar body/agency.
If the OWJ is the MnDNR, use the process outlined at MnDNR/MnDOT Coordination for Section 4(f) Concurrence.
In cases involving Tribal property, FHWA must be involved with all consultation and the transmittal of correspondence.

4.1.2 Historic properties

SHPO is normally the OWJ
This coordination is included in consultation that occurs between MnDOT CRU, the State Historic Preservation Office, Tribal Historic Preservation Officer(s), and other parties. The Section 106 Memorandum of Agreement is a part of this coordination.

4.1.3 Other federal agencies with legally mandated review of Section 4(f) Individual Evaluations

U.S. Department of Interior (including National Park Service, U.S. Fish and Wildlife Service, U.S. Geological Survey)
to a lesser extent, the U.S. Department of Housing and Urban Development and the U.S. Department of Agriculture (including Forest Service and Natural Resources Conservation Service)

4.2 Review and Approval Actions

FHWA is the agency responsible for Section 4(f) decisions and determinations. However, Section 4(f) documents have requirements for OWJ coordination and public review, depending on the type of use.

How Section 4(f) documents are processed depends on the NEPA Class of Action (see Section 4.3). The below table provides the reviewers and review durations required for each type of Section 4(f) analysis. It also identifies which documents require public review. Section 4.3 provides additional details for processing Section 4(f) documents with NEPA documents.

Type of Section 4(f) document: Temporary Occupancy

Request for OWJ Temporary Occupancy Concurrence letter (for parks or historic sites)

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: None
OWJ Action/Review Time: Approve and Sign (30 days)
Public Review Time: None

Type of Section 4(f) document: De minimis Impact Determination

FHWA De Minimis Determination Notice of Intent Request (for parks)

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Approve and Sign (30 days)
OWJ Action/Review Time: Review
Public Review Time: None

OWJ De Minimis Concurrence Request (for parks)

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Approve and Sign (30 days)
OWJ Action/Review Time: Approve and Sign (30 days)
Public Review Time: None

FHWA De Minimis Determination Notice of Intent (for historic sites)

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Approve and Sign (30 days)
OWJ Action/Review Time: Approve and comment (30 days)
Public Review Time: None

OWJ De Minimis Concurrence Request (for historic sites)

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Approve and Sign (30 days)
OWJ Action/Review Time: Approve and Sign (30 days)
Public Review Time: None

Preliminary De Minimis Determination (for parks and historic sites)

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Approve and Sign (14 days) Review and approval completed with administrative review of NEPA document.
OWJ Action/Review Time: Review during NEPA EA or EIS comment period (30 days) CatEx: 14 days
Public Review Time: Review during NEPA EA or EIS comment period (30 days) CatEx: 14 days

Final De Minimis Determination (for parks and historic sites)

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Approve and Sign (14 days) Review and approval completed with administrative review of NEPA document.
OWJ Action/Review Time: None, published in FOFC, FONSI or ROD
Public Review Time: None, published in FOFC, FONSI or ROD

Type of Section 4(f) document: Programmatic Section 4(f) Evaluation

Preliminary Evaluation

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Review and Comment (30 days) Review and approval completed with administrative review of NEPA document.
OWJ Action/Review Time: Review during NEPA EA or EIS comment period (30 days) CatEx: 14 days
Public Review Time: During NEPA EA or EIS comment period (30 days) CatEx: 14 days

Final Evaluation

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Approve (14 days)
OWJ Action/Review Time: None, published in FOFC, FONSI or ROD
Public Review Time: None, published in FOFC, FONSI or ROD

Type of Section 4(f) document: Individual Section 4(f) Evaluation

Preliminary Draft Evaluation

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Review and Comment (30 days)
OWJ Action/Review Time: None
Public Review Time: None

Draft Evaluation

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Review (14 days)
OWJ Action/Review Time: DOI Comment (45 days min. – assume 60 days for scheduling purposes) OWJ review during NEPA EA or EIS comment period (30 days) CatEx: 14 days
Public Review Time: During NEPA EA or EIS comment period (30 days) CatEx: 14 days

Preliminary Final Evaluation

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Review and Comment (30 days) Legal Sufficiency Review and Comment (30 days)
OWJ Action/Review Time: None
Public Review Time: None

Final Evaluation

OES Action/Review Time: Review (14 days)
FHWA Action/Review Time: Approve (14 days)
OWJ Action/Review Time: None, published in FOFC, FONSI or ROD
Public Review Time: None, published in FOFC, FONSI or ROD

4.3 Processing Section 4(f) with NEPA Document

4.3.1 Class I Action (EIS)

De minimis impact determination
- FHWA’s intent to make a de minimis impact determination for the preferred alternative is included in the Draft or Final EIS (depending on where the preferred alternative is initially identified). Therefore, the request for preliminary de minimis determination should be submitted no later than FHWA review of the preliminary EIS document.
- FHWA makes the final de minimis determination after the public comment period on the EIS. The final de minimis determination is included in the ROD.
Programmatic and Individual Section 4(f) Evaluations
- These normally must be included in the EIS, but may be a separate document under certain circumstances, such as if the Draft or Final EIS has already been approved. (In these cases, any available preliminary Section 4(f) documentation would be included with the EIS.)
- The review and approval process for a draft and final Section 4(f) Evaluation is the same as that for the draft and final EIS.
- If the EIS contains a Section 4(f) Evaluation, additional EIS copies may be required for distribution.
- The Final EIS cannot be issued until the final Section 4(f) Evaluation is approved.
Contact OES for more assistance if a combined FEIS/ROD process is being used, as there will be some adjustments in how the Section 4(f) evaluation is coordinated with the combined FEIS/ROD.

4.3.2 Class II Action (Programmatic and Non-programmatic Categorical Exclusion)

De minimis impact determination
- The request for preliminary de minimis impact determination and public notice of FHWA’s intent to make a de minimis determination needs to be processed in a time frame that allows for public comment.
- A 30-day public comment period for the intent to make a de minimis determination is required.
- Projects with only de minimis determination always need OES and FHWA review and approval of the Section 4(f) documentation that becomes part of the Categorical Exclusion document.
- The intent to make a de minimis determination and any final de minimis determination needs to be included in the Categorical Exclusion document.
Programmatic Section 4(f) Evaluation
- This is included as part of the Categorical Exclusion Determination document. The final CatEx is titled, “Categorical Exclusion Determination and Section 4(f) Evaluation”.
- Programmatic Section 4(f) evaluations have the same FHWA review and approval time periods as the Categorical Exclusion Determination document:
  - 30 days review/comment period for the preliminary document

14 days for approval of the final document

Individual Section 4(f) Evaluation
- This should be processed as a separate document before the Categorical Exclusion Determination document is submitted, due to the review time required to process an individual Section 4(f) evaluation. FHWA typically approves the Final individual Section 4(f) Evaluation and signs the CE at the same time.
See the following guidance documents for how to conduct the appropriate Section 4(f) evaluation for Programmatic Categorical Exclusions

4.3.3 Class III Action (Environmental Assessment):

De minimis impact determination
- FHWA’s intent to make a de minimis impact determination for the preferred alternative is included in the EA. Therefore, the request for preliminary de minimis determination should be submitted no later than FHWA review of the draft EA.
- FHWA makes the final de minimis determination after the public comment period on the EA.
- The final de minimis determination is included as an attachment to the Findings of Fact and Conclusions Document that accompanies the FONSI request and/or is stated in the FONSI.
- Consult with OES to determine which path applies for a given project.
Individual Section 4(f) Evaluation or Programmatic Section 4(f) Evaluation
- These are usually attached as an appendix to the EA, but in rare cases may be a separate document (such as if there is found to be an impact to a newly-discovered Section 4(f) resource after the FONSI has already been approved).
- Review of a Programmatic Section 4(f) Evaluation follows the same process as the EA.
- Review of a draft Individual Section 4(f) Evaluation requires a 45-day DOI review period concurrent with (but with a longer time requirement than) the EA review process.
- The final Section 4(f) Evaluation is typically sent to FHWA with the FONSI request package, but in some cases OES may send it earlier. (For example, under a tight schedule it may be good to send an individual evaluation due to the time needed for the required legal sufficiency review).
- The FONSI can’t be issued until the Section 4(f) Evaluation is approved, and FHWA’s Section 4(f) approval is separate from the FONSI.
- FHWA approval of the Section 4(f) Evaluation/use is provided with, or prior to, the FONSI transmittal letter from FHWA to MnDOT.

Glossary

Advisory Council on Historic Preservation (ACHP) – An independent federal agency charged with advising the President and Congress on historic preservation matters and administrating the provisions of Section 106 of the National Historic Preservation Act. The various duties of the council are defined by regulations at 36 CFR 800. Under revised regulations that became effective 01/11/01, the ACHP becomes involved in individual Section 106 reviews only under certain circumstances (outlined in 36 CFR 800, Appendix A).

Adverse Effect – Adverse effect may apply to properties on or eligible for the National Register of Historic Places. It refers to the diminishment of a property's integrity with respect to its location, design, setting, materials, workmanship, feeling, or association. The term is applied by federal agency officials, in consultation with the State (or Tribal) Historic Preservation Officer, as part of the Section 106 process.

All possible planning - means that all reasonable measures identified in the Section 4(f) evaluation to minimize harm or mitigate for adverse impacts and effects must be included in the project.

With regard to public parks, recreation areas, and wildlife and waterfowl refuges, the measures may include (but are not limited to): design modifications or design goals; replacement of land or facilities of comparable value and function; or monetary compensation to enhance the remaining property or to mitigate the adverse impacts of the project in other ways.
With regard to historic sites, the measures normally serve to preserve the historic activities, features, or attributes of the site as agreed by the Administration and the official(s) with jurisdiction over the Section 4(f) resource in accordance with the consultation process under 36 CFR part 800.
All possible planning does not require analysis of feasible and prudent avoidance alternatives, since such analysis will have already occurred in the context of searching for feasible and prudent alternatives that avoid Section 4(f) properties and is not necessary in the case of a de minimis impact determination.

Constructive Use – A type of indirect use in which a transportation project's proximity impacts (as opposed to direct impacts) are so severe that the protected activities, features, or attributes that qualify a resource for protection under Section 4(f) are substantially impaired.

Examples include excessive noise level increases, diminished aesthetic features, or ecological intrusions.

Cultural Resources – Any historic (or prehistoric) district, site, building, structure, or object that is either listed or eligible for listing on the National Register of Historic Places. Examples include such items as artifacts, records, structures and remains.

Department of Transportation (US DOT) – The US DOT is the Federal steward of the nation's transportation system. It houses agencies that provide transportation services to the American public, including the Federal Highway Administration, the Federal Transit Administration, and the Federal Aviation Administration. Section 4(f) of the DOT Act of 1966 stipulates that agencies within the DOT cannot approve the use of land from a significant publicly owned public park, recreation area, wildlife or waterfowl refuge, or any significant historic site unless there is no feasible and prudent alternative to the use of land.

De Minimis Impacts Determination –FHWA can determine that certain uses of Section 4(f) land will have no adverse effect on the protected resource. When this is the case, and the responsible OWJ over the resources agrees in writing, compliance with Section 4(f) is greatly simplified. The de minimis impact criteria and associated determination requirements are different for historic sites than for parks, recreation areas, and wildlife and waterfowl refuges.

Eligible – Refers to properties that meet the National Park Service Criteria for eligibility for listing on the National Register of Historic Places.

Extraordinary Magnitude – A reference to exceedingly high costs or other objectionable factors associated with a project alternative. Extraordinary magnitude characterizes the impacts to Section 4(f) or non-Section 4(f) resources as beyond the boundaries of feasible and prudent.

Feasible and Prudent – A term that is integral to the Section 4(f) process, “feasible and prudent” refers to the viability of an alternative that avoids use of a Section 4(f) resource. If there is an avoidance alternative that is both feasible and prudent, that alternative must be selected (unless there is another feasible and prudent avoidance alternative). By contrast, an alternative may be rejected based on not being feasible and prudent.

Feasible -- The term "feasible" refers to the constructability of a project — whether or not it can be built as a matter of sound engineering judgment, using current construction methods technologies and practices.
Prudent -- The term "prudent" refers to how reasonable the alternative is – in essence whether or not it makes sense. An alternative may be considered not prudent for any of the following reasons:
- It compromises the project to a degree that it is unreasonable to proceed in light of the project’s stated purpose and need (i.e., the alternative does not address the purpose and need of the project);
- It results in additional construction costs of extraordinary magnitude;
- It involves extraordinary operational or safety problems;
- It causes severe social, economic, or environmental impacts;
- It causes severe disruption to established communities;
- It causes severe or disproportionate impacts to minority or low-income populations;
- It causes severe impacts to environmental resources protected under other Federal statutes;
- There are unique problems or truly unusual factors present with it; or
- There is an accumulation of factors that collectively, rather than individually, have adverse impacts that present unique problems or reach extraordinary magnitude.

Indirect (Secondary) Effects – Impacts caused by direct effects (direct impacts) but that occur usually after project construction and often may be outside the project boundaries. (For more information, see 40 CFR 1508.8[b].)

Incidental, secondary, occasional and dispersed – Minor or casual activities that may occur on publicly owned land that is open to the public but not managed as, or planned to be, a park or recreation area. An example would be property acquired as open space where people may picnic or walk their dogs, but that public officials do not consider significant as a park.

Land and Water Conservation Fund Act (LAWCON) – Passed by Congress in 1965, the act established the Land and Water Conservation Fund, a matching assistance program that provides grants which pay half the acquisition and development cost of outdoor recreation sites and facilities.

Section 6(f) of LAWCON prohibits the conversion of property acquired or developed with these grants to a non-recreational purpose without the approval of the Department of Interior's (DOI's) National Park Service. The DOI must ensure that replacement lands of equal value, location and usefulness are provided as a condition of such conversions. Consequently, where conversions of Section 6(f) lands are proposed for highway projects, replacement lands are required.

Late Discovery – A circumstance in which a previously unknown Section 4(f) resource is found after a project is already underway. A late discovery can occur during the construction phase of a project or during the preparation of the Final Environmental Impact Statement (FEIS).

Legal Sufficiency Review – A review that is required by the Federal Highway Administration for final environmental impact statements (FEISs) and final Individual Section 4(f) evaluations. The purpose of the review is to ensure that Section 4(f) and NEPA requirements have been met and are legally defensible. It is not a technical review, but a review of Section 4(f) and NEPA documentation and compliance efforts, and an attempt to make sure that these efforts correspond with the law.

Minor Use – When applied to parks, recreation lands, and wildlife or waterfowl refuges, minor use signifies that the amount of land acquired by a transportation agency is relatively small.
For an acquisition to be considered minor use for purposes of applying the Programmatic Agreement for Minor Use of Parks, Recreation Areas, and Wildlife Refuges, it must meet the following specifications:

Resource Size	Portion Acquired
< 10 acres	10% of the site
10 - 100 acres	1 acre of the site
> 100 acres	1% of the site

With respect to historic sites, an acquisition is considered to be a minor use when there is a determination of "no adverse effect" (or "no effect").

National Historic Preservation Act (NHPA) – A federal law established in 1966, the NHPA requires Federal agencies to consider the effects of their undertakings on historic properties and provide the Advisory Council on Historic Preservation with an opportunity to comment on such undertakings.

Section 106 of the National Historic Preservation Act mandates consideration of a project's effect on historic resources in much the same way as Section 4(f). Because of their similarities, the relationship between Sections 4(f) and 106 is a common source of confusion. The most important connection between the two statutes is that the Section 106 process is generally the method by which a cultural resource's significance is determined for a federal undertaking under Section 4(f).

National Register of Historic Places (NRHP) – The Nation's official list of cultural resources worthy of preservation. Authorized under the National Historic Preservation Act of 1966, the National Register is part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect our historic and archeological resources. Properties listed in the Register include districts, sites, buildings, structures, and objects that are significant in American history, architecture, archeology, engineering, and culture. The National Park Service administers the National Register, which is part of the U.S. Department of the Interior.

Net Benefits Programmatic Agreement – This nationwide programmatic Section 4(f) evaluation has been prepared for certain projects that will use property of a Section 4(f) park, recreation area, wildlife or waterfowl refuge, or historic property, which in the view of the Administration and official(s) with jurisdiction over the Section 4(f) property, the use of the Section 4(f) property will result in a net benefit to the Section 4(f) property. A "net benefit" is achieved when the transportation use, the measures to minimize harm and the mitigation incorporated into the project results in an overall enhancement of the Section 4(f) property when compared to both the future do-nothing or avoidance alternatives and the present condition of the Section 4(f) property, considering the activities, features and attributes that qualify the property for Section 4(f) protection.

Official with Jurisdiction (OWJ)

In the case of historic properties, the OWJ is typically the Minnesota SHPO or, if the property is located on tribal land, the THPO. If the property is located on tribal land but the Indian tribe has not assumed the responsibilities of the SHPO as provided for in the National Historic Preservation Act, then a representative designated by such Indian tribe shall be recognized as an official with jurisdiction in addition to the SHPO. When the ACHP is involved in a consultation concerning a property under Section 106 of the NHPA, the ACHP is also an official with jurisdiction over that resource for purposes of this part. When the Section 4(f) property is a National Historic Landmark, the National Park Service is also an official with jurisdiction over that resource for purposes of this part.
In the case of public parks, recreation areas, and wildlife and waterfowl refuges, the official(s) with jurisdiction are the official(s) of the agency or agencies that own or administer the property in question and who are empowered to represent the agency on matters related to the property.
In the case of portions of Wild and Scenic Rivers to which Section 4(f) applies, the official(s) with jurisdiction are the official(s) of the Federal agency or agencies that own or administer the affected portion of the river corridor in question. For State administered, federally designated rivers (section 2(a)(ii) of the Wild and Scenic Rivers Act, 16 U.S.C. 1273(a)(ii)), the officials with jurisdiction include both the State agency designated by the respective Governor and the Secretary of the Interior.

Programmatic Evaluation – Programmatic Section 4(f) evaluations can be used in place of individual evaluations for highway projects where uses are considered minor. The primary advantage of a programmatic evaluation is that it saves time. Unlike an individual evaluation, a programmatic evaluation does not require a draft, a comment period, or circulation, because its framework and basic approach has already been circulated and agreed upon by the US Department of the Interior (DOI). Project specific details are then applied to the programmatic to determine whether or not it can be used. Programmatic evaluations are usually approved much faster than individual evaluations.

Prudent – (See “Feasible and Prudent”)

Public – Public use entails visitation for more than a select group of the public at any time during normal hours of operation.

Publicly Owned – Property that is owned/operated by a public entity. If a governmental body has a proprietary interest in the land (such as fee ownership, drainage easements or wetland easements), it can still be considered publicly owned. Land subject to a public easement in perpetuity can also be considered to be publicly owned land for the purpose which the easement exists.

Section 106 – Under Section 106 of the National Historic Preservation Act of 1966, as amended, federal agencies must identify and evaluate cultural resources and consider the impact of undertakings they fund, license, permit, or assist on historic properties eligible for inclusion in the National Register of Historic Places. The federal agencies must afford the State Historic Preservation Officer and the Advisory Council on Historic Preservation the opportunity to comment on these undertakings.

Section 6(f) (of The Land Water Conservation Fund Act) – See “Land and Water Conservation Fund Act”

Significance – Significance means that in comparing the availability and function of the resource with the recreational, park, and refuge objectives of that community, the resource in question plays an important role in meeting those objectives. If a determination from the official with jurisdiction cannot be obtained, the Section 4(f) land will be presumed to be significant. All determinations (whether stated or presumed) are subject to review by FHWA for reasonableness.

Minnesota State Historic Preservation Officer (SHPO) – A governor-appointed position and, typically, a member of a state historic preservation agency, the SHPO provides project review and compliance of Section 106 of the National Historic Preservation Act. The Department of Transportation generally uses the Section 106 process as a method by which a cultural resource's significance is determined for a federal undertaking under Section 4(f).

Real Property Interest – Real property interest means any interest in land and any improvements thereto, including fee and less-than-fee interests such as temporary and permanent easement, air or access rights, access control, options and other contractual rights to acquire an interest in land, rights to control use or development, leases and licenses, and any other similar action acquire or preserve right of way for a transportation facility.

Substantially Impaired – Substantial impairment occurs only when the protected activities, features or attributes of the resource are substantially diminished.

Temporary Occupancy – A temporary occupancy of land is so minimal that it does not constitute a use within the meaning of Section 4(f) when the duration is temporary, the scope of work is minor, there are no anticipated permanent adverse physical impacts, and the when land will be fully restored. There must be documented agreement of the appropriate Federal, State, or local officials having jurisdiction over the resource regarding the above conditions.

Transportation Enhancement Activities (TEAs) – Transportation enhancement activities are projects that improve communities' cultural, aesthetic and environmental qualities. Eligible activities include bicycle and pedestrian pathways, historic preservation, acquisition of conservation or scenic easements, rails-to-trails projects, and the mitigation of water pollution due to highway runoff.

Tribal Historic Preservation Officer (THPO) -- Tribal Historic Preservation Officers are officially designated by a federally-recognized Indian tribe to direct a program approved by the National Park Service and the THPO must have assumed some or all of the functions of State Historic Preservation Officers on Tribal lands. This program was made possible by the provisions of Section 101(d)(2) of the National Historic Preservation Act.

Use – Generally, "use" occurs with a DOT approved project or program (1) when land from a Section 4(f) property is acquired for a transportation project, (2) when there is a temporary occupancy of land that is adverse in terms of the statute's preservationist purposes, or (3) when the proximity impact of the transportation project on the Section 4(f) site, without acquisition of land, are so great that the purposes for which the Section 4(f) site exists are substantially impaired.

Unique Problems – Unique problems are present when there are unusual factors, or when the costs or community disruption reach extraordinary magnitude.

Appendix: Avoidance, Minimization & Mitigation of Section 4(f) Properties

For Programmatic Section 4(f) Evaluations, consult the applicable FHWA Programmatic Section 4(f) Evaluation for any specific avoidance requirements or guidance.

Ways to AVOID Section 4(f) properties include but are not limited to:

Change the corridor
Change the alignment
Change roadway profile or vertical curvature
Reduce roadway cross section
Modify bridge approaches and/or bridge piers
Use storm sewer instead of ditches
Modify drainage or stormwater management facilities
Use guardrails or traffic barriers to decrease clear zone width requirement
Change location or type of noise walls, utilities, signs or lighting
Use retaining walls, rock cuts or steeper embankments
Compare different types of interchanges
Compare different types of bridges or other structures
Change location of proposed bridge, intersection or interchange
Use innovative construction techniques
Use lower design speed to allow shorter radius curves
Modify project scope
Shift system improvements to a nearby parallel road
Modify construction staging, access roads, bypasses or detours
Seek approval for design exceptions (refer to Geometric Layouts)

Ways to MINIMIZE impacts include but are not limited to:

Limit the construction schedule to minimize impacts
Use tunneling or cut-and-cover
Use innovative stormwater management methods
Construct a bicycle and pedestrian overpass or underpass
Construct an overpass or underpass for wildlife passage
Other alternatives or design features identified during coordination and consultation with official having jurisdiction over the Section 4(f) property
Avoid key portions of the property

Ways to MITIGATE by compensation include but are not limited to:

Suggestions from the official having jurisdiction
Replacement with land and facilities of comparable value and function
Monetary compensation used to enhance remaining property
Relocation or replacement of affected facilities
- Playgrounds, ball fields, structures, pools
- Sidewalks, paths, roads, driveways, entrances
- Benches, lighting, fences, walls
- Vegetation
Restoration and landscaping of disturbed areas
Bicycle, pedestrian or recreation enhancement features
Wildlife habitat enhancement features
Vegetation buffers or other screening measures
Measures to preserve historical integrity of cultural resources