Although Section 4(f) applies to a narrower scope of actions than Section 106 of the National Historic Preservation Act or the National Environmental Policy Act in that it only addresses transportation-related projects or programs, the law provides substantive protection for historic resources. Specifically, the law states that any federally-assisted transportation projects may not "use" land from a historic site or park, among other environmentally-sensitive areas, unless 1) there is "no feasible and prudent alternative" to using the site, and 2) the project includes all possible planning to minimize harm to the site.
Historic sites include properties of "national, state or local significance (as determined by federal, state, or local officials having jurisdiction over the...site)." It protects properties listed or eligible for listing in the National Register of Historic Places, and in some cases, properties identified by state and local governments as historically significant.
As with Section 106 of the National Historic Preservation Act and the National Environmental Policy Act, historic sites must be identified early in the process. Courts have generally rejected attempts to defer identifying sites until a project is underway. However, deferral may be appropriate in limited instances. For example, the deferral of Section 4(f) analysis for limited "ancillary" activities associated with highway construction, such as the identification of locations for burrow pits, was upheld in City of Alexandria v. Slater, 198 F.3d 962 (D.C. Cir. 1999).
Section 4(f) requirements are triggered whenever a DOT project or program will "use" land from historic sites. The term "use" is much broader than the conventional definition of the work implies. It includes physical harm to historic sites along with "constructive uses" or impacts if the use would "substantially impair the value of the property in terms of its use and enjoyment," 23 U.S.C. § 771.135(p)(2). Thus, the use of a historic site may include the demolition, removal, or disturbance of historic sites as well as impacts such as noise, pollution and visual intrusions, 23 C.F.R. § 771.135(p)(4).
No Prudent and Feasible Alternatives
The identification of less harmful alternatives, including a "no-build" alternative, is essential to Section 4(f) compliance. The U.S. Supreme Court has said that historic sites may be used for transportation purposes only if "there [are] truly unusual factors present in [the] case," if "feasible alternative routes involve uniquely difficult problems," or if "the cost or community disruption resulting from alternative routes [reach] extraordinary magnitude,"Citizens to Preserve Overton Park v. Volpe, 401 U.S. 409, 413 (1971). A "feasible alternative" is one that can be accomplished as a matter of sound engineering. However, an alternative should not be disregarded simply because it does not offer a complete solution to the problem.
If the Secretary of Transportation decides that there are "no prudent and feasible alternatives" to its proposed project or program, it may use the historic site. However, a project or program may not be approved unless he or she has engaged in "all possible planning" to minimize harm to the resource.
This requirement imposes an affirmative obligation on the part of the agency to not only mitigate, but also to minimize harm to the resource before the project may be approved. That being said, courts have construed this requirement as being limited by a standard of reasonableness.
The FHWA has adopted regulations establishing procedures for Section 4(f) compliance (See 23 C.F.R. § 771.135). As with Section 106 of the National Historic Preservation Act and the National Environmental Policy Act, environmental reviews are to be conducted early in the planning stages of the project. Responsibility for preparing the review rests on the application for transportation funding or other approvals. The evaluation is then reviewed by federal agency officials having jurisdiction over the project, including DOT and the Department of Interior.
Section 4(f) evaluations of alternative actions and mitigation measures usually occur as part of the draft Environmental Assessment, Environmental Impact Statement (EIS), or in a separate document, if the project is classified as Categorically Exempt (CE). The Section 4(f) Statement, if an EIS is prepared, or a separate section 4(f) evaluation, if no EIS has been prepared, identifies the alternative selected, explains why alternatives to the selected action is not feasible and prudent, and describes the measures that will be taken to minimize harm to the property. Final agency approval is generally set forth in the Record of Decision.