The Department of Transportation Act (DOT Act) of 1966 includes a special provision - Section 4(f) - which stipulates 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 avoidance alternative to the use of land; and
- The action includes all possible planning to minimize harm to the property resulting from such use;
- The Administration determines that the use of the property will have a de minimis impact.
Section 4(f) of the DOT Act of 1966 was originally set forth in Title 49 United States Code (U.S.C.). A similar provision was added to Title 23 U.S.C. Section 138, which applies only to the Federal-Aid Highway Program.
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, simplifies its regulatory requirements, and moves the Section 4(f) regulation to 23 CFR 774.
SAFETEA-LU Section 6009(c) requires that US DOT study the implementation of Section 6009 and the amendments to Section 4(f) and provide two reports to Congress, the Department of Interior, and the Advisory Council on Historic Preservation. The Phase I Report of the SAFETEA-LU Section 6009 Implementation Study was submitted to them on September 15, 2010. The Phase II Report of the SAFETEA-LU Section 6009 Implementation Study was submitted to them on January 31, 2012.
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