C.F.R. » Title 23 » CHAPTER I—FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION › SUBCHAPTER H—RIGHT-OF-WAY AND ENVIRONMENT › PART 774—PARKS, RECREATION AREAS, WILDLIFE AND WATERFOWL REFUGES, AND HISTORIC SITES (SECTION 4(f))

23 C.F.R. § 774.3

Section 4(f) approvals

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The Administration may not approve the use, as defined in § 774.17, of Section 4(f) property unless a determination is made under paragraph (a) or (b) of this section.

(a) The Administration determines that:

(1) There is no feasible and prudent avoidance alternative, as defined in § 774.17, to the use of land from the property; and

(2) The action includes all possible planning, as defined in § 774.17, to minimize harm to the property resulting from such use; or

(b) The Administration determines that the use of the property, including any measure(s) to minimize harm (such as any avoidance, minimization, mitigation, or enhancement measures) committed to by the applicant, will have a de minimis impact, as defined in § 774.17, on the property.

(c) If the analysis in paragraph (a)(1) of this section concludes that there is no feasible and prudent avoidance alternative, then the Administration may approve, from among the remaining alternatives that use Section 4(f) property, only the alternative that:

(1) Causes the least overall harm in light of the statute's preservation purpose. The least overall harm is determined by balancing the following factors:

(i) The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property);

(ii) 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;

(iii) The relative significance of each Section 4(f) property;

(iv) The views of the official(s) with jurisdiction over each Section 4(f) property;

(v) The degree to which each alternative meets the purpose and need for the project;

(vi) After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f); and

(vii) Substantial differences in costs among the alternatives.

(2) The alternative selected must include all possible planning, as defined in § 774.17, to minimize harm to Section 4(f) property.

(d) Programmatic Section 4(f) evaluations are a time-saving procedural alternative to preparing individual Section 4(f) evaluations under paragraph (a) of this section for certain minor uses of Section 4(f) property. Programmatic Section 4(f) evaluations are developed by the Administration based on experience with a specific set of conditions that includes project type, degree of use and impact, and evaluation of avoidance alternatives. 1 An approved programmatic Section 4(f) evaluation may be relied upon to cover a particular project only if the specific conditions in the programmatic evaluation are met

1 FHWA Section 4(f) Programmatic Evaluations can be found at www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp.

(1) The determination whether a programmatic Section 4(f) evaluation applies to the use of a specific Section 4(f) property shall be documented as specified in the applicable programmatic Section 4(f) evaluation.

(2) The Administration may develop additional programmatic Section 4(f) evaluations. Proposed new or revised programmatic Section 4(f) evaluations will be coordinated with the Department of Interior, Department of Agriculture, and Department of Housing and Urban Development, and published in the Federal Register for comment prior to being finalized. New or revised programmatic Section 4(f) evaluations shall be reviewed for legal sufficiency and approved by the Headquarters Office of the Administration.

(e) The coordination requirements in § 774.5 must be completed before the Administration may make Section 4(f) approvals under this section. Requirements for the documentation and timing of Section 4(f) approvals are located in §§ 774.7 and 774.9, respectively.

[73 FR 13395, Mar. 12, 2008, as amended at 73 FR 31610, June 3, 2008; 83 FR 54506, Oct. 29, 2018]
Notes of Decisions
Cited in 12 cases (3 in the last 5 years), 2010–2024 · leading case: Defenders of Wildlife v. North Carolina Dep't of Transp., 762 F.3d 374 (4th Cir. 2014).
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Defenders of Wildlife v. North Carolina Dep't of Transp., 762 F.3d 374 (4th Cir. 2014). · cites it 2× “” 23 C.F.R. § 774.3 (c)(1). This determination involves balancing several factors, including: (1) the “ability to mitigate adverse impacts”; (2) the relative severity of the harm after mitigation; (3) the relative significance of the Section 4(f) property; (4) the “views of the…”
Save Our Sound OBX, Inc. v. NC Dept of Transp., 914 F.3d 213 (4th Cir. 2019). “" 23 C.F.R. § 774.3 (c). Relevant considerations in selecting the least harmful alternative include whether harm to the land can be mitigated, whether harm to the land affects the attributes qualifying that land for protection, and whether the alternative meets the needs of the…”
Friends of the Capital Crescent Trail v. Fed. Transit Admin., 255 F. Supp. 3d 60 (D.D.C. 2017). “” 23 CFR § 774.3 (b); id. § 774.17(5). Here, MTA committed to implement mitigation measures and to exchange land with the National Park Service, and concluded (with the Park Service’s agreement), that the Parkway property would not be adversely affected and was therefore de…”
Prairie Band Pottawatomie Nation v. Fed. High. Admin., 751 F. Supp. 2d 1174 (D. Kan. 2010). · cites it 2× “3 If “there is no feasible and prudent avoidance alternative, then the [Federal Highway] Administration may *1183 approve, from the remaining alternatives that use Section 4(f) property,” the alternative that “causes the least overall harm in light of the statute’s preservation…”
Defenders of Wildlife v. North Carolina Dep't of Transp., 971 F. Supp. 2d 510 (E.D.N.C. 2013). · cites it 2× “23 C.F.R. § 774.3 (c)(1). The least overall harm is determined by balancing the following factors: (i) The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property); (ii) The relative severity of the…”
Maryland Chapter of the Sierra Club v. Fed. High. Adminstration (D. Maryland 2024). · cites it 6× “at 67) (first citing AR 14952; AR 17698; and then quoting 23 C.F.R. § 774.3 (c)(1)). 1. Morningstar Moses Cemetery Morningstar Plaintiffs argue that the Agencies’ approval of the Preferred Alternative is deficient because the Agencies entered into a programmatic agreement (“PA”)…”
Coalition to Preserve McIntire Park v. Mendez, 862 F. Supp. 2d 499 (W.D. Va. 2012). · cites it 6× “Pursuant to 23 C.F.R. § 774.3 (c), the FHWA next proceeded to an analysis of which alternative would cause the least overall harm to Section 4(f) properties.”
Conservation All. of St. Lucie Cnty., Inc. v. U.S. Dep't of Transp., 847 F.3d 1309 (11th Cir. 2017). · cites it 2× “23 C.F.R. § 774.3 (c)(1). This is “a simple balancing process which totals the harm caused by each alternate route to section 4(f) areas and selects the option which does the least harm.”
Bair v. California Dep't of Transp. (N.D. Cal. 2021). · cites it 2× “23 C.F.R. § 774.3 (d)(1). While “individual” Section 7 4(f) evaluations require more attention to the specific circumstances of a project, 8 “programmatic” evaluations allow for a more stream-lined approval process “based on 9 experience with a specific set of conditions” for…”
Potomac Heritage Trail Ass'n, Inc. v. U.S. Dep't of Transp. (D. Maryland 2022). · cites it 2× “§ 303 (d); 23 C.F.R. § 774.3 (b). Second, if the impact is more than de minimis, the Secretary may approve the project “only if—(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to…”
Conservation All. v. United States Dep't of Transp., 145 F. Supp. 3d 1198 (S.D. Fla. 2015). · cites it 3× “23 C.F.R. § 774.3 (c). Seven factors govern this inquiry: (i) The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property); (ii) The relative severity of the remaining harm, after mitigation, to the…”
Citizens for Smart Growth v. Peters, 716 F. Supp. 2d 1215 (S.D. Fla. 2010). “135 and replacing it with 23 C.F.R. § 774.3 . 73 Fed.Reg. 13368, 13395.”
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