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. § 774.9

Timing

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(a) The potential use of land from a Section 4(f) property shall be evaluated as early as practicable in the development of the action when alternatives to the proposed action are under study.

(b) Except as provided in paragraph (c) of this section, for actions processed with EISs the Administration will make the Section 4(f) approval either in the final EIS or in the ROD. Where the Section 4(f) approval is documented in the final EIS, the Administration will summarize the basis for its Section 4(f) approval in the ROD. Actions requiring the use of Section 4(f) property, and proposed to be processed with a FONSI or classified as a CE, shall not proceed until notification by the Administration of Section 4(f) approval.

(c) After the CE, FONSI, or ROD has been processed, a separate Section 4(f) approval will be required, except as provided in § 774.13, if:

(1) A proposed modification of the alignment or design would require the use of Section 4(f) property; or

(2) The Administration determines that Section 4(f) applies to the use of a property; or

(3) A proposed modification of the alignment, design, or measures to minimize harm (after the original Section 4(f) approval) would result in a substantial increase in the amount of Section 4(f) property used, a substantial increase in the adverse impacts to Section 4(f) property, or a substantial reduction in the measures to minimize harm.

(d) A separate Section 4(f) approval required under paragraph (c) of this section will not necessarily require the preparation of a new or supplemental NEPA document. If a new or supplemental NEPA document is also required under § 771.130 of this chapter, then it should include the documentation supporting the separate Section 4(f) approval. Where a separate Section 4(f) approval is required, any activity not directly affected by the separate Section 4(f) approval can proceed during the analysis, consistent with § 771.130(f) of this chapter.

(e) Section 4(f) may apply to archeological sites discovered during construction, as set forth in § 774.11(f). In such cases, the Section 4(f) process will be expedited and any required evaluation of feasible and prudent avoidance alternatives will take account of the level of investment already made. The review process, including the consultation with other agencies, will be shortened as appropriate.

Notes of Decisions
Cited in 9 cases (3 in the last 5 years), 2008–2024 · 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). “1999); see also 23 C.F.R. § 774.9 (a) (“The potential use of land from a Section 4(f) property shall be evaluated as early as practicable .”
Honolulutraffic.Com v. Fed. Transit Admin., 742 F.3d 1222 (9th Cir. 2014). “” 23 C.F.R. § 774.9 (a). Sites are identified as eligible so long as they are included in, or eligible for inclusion in the National Register of Historic Places.”
North Idaho Cmty. Action Network v. United States Dep't of Transp., 545 F.3d 1147 (9th Cir. 2008). “23 C.F.R. § 774.9 (a) & (b) still provide that § 4(f) properties must be evaluated early while alternatives are under study, and that the § 4(f) approval should appear in the EIS or ROD.”
Highland Vill. Parents Grp. v. United States Fed. High. Admin., 562 F. Supp. 2d 857 (E.D. Tex. 2008). “12, 2008) and reco-dified without relevant substantive change at 23 C.F.R. § 774.9 (c) (2008)). That regulation is aimed at the circumstance where a project is approved in a way that does not implicate the use of Section 4(f) land and is then amended in some way that does…”
Coalition for Sonoran Desert Prot. v. Fed. High. Admin. (D. Ariz. 2023). · cites it 4× “" 23 C.F.R. § 774.9 (a). 27 Section 4(f) applies not just to the agency's direct use of a Section 4(f) property but 28 also to the "constructive use" of a nearby Section 4(f) property.”
Maryland Chapter of the Sierra Club v. Fed. High. Adminstration (D. Maryland 2024). · cites it 2× “23 C.F.R. § 774.9 (b). Section 4(f) property must be identified and evaluated for potential use “as early as practicable in the development of the action when alternatives to the proposed action are under study.”
North Idaho Cmty. v. Us Dept. of Transp., 545 F.3d 1147 (9th Cir. 2008). “23 C.F.R. § 774.9 (a) & (b) still provide that § 4(f) properties must be evaluated early while alternatives are under study, and that the § 4(f) approval should appear in the EIS or ROD.”
Bair v. California Dep't of Transp. (N.D. Cal. 2021). “23 C.F.R. § 774.9 (c)(3). However, the changes to 1 notable changes between the 2010 minimization measures and the 2013 minimization 2 measures were elimination of night work restrictions and new details on where Caltrans would 3 use pneumatic excavators (equipment that uses…”
honolulutraffic.com v. Fta (9th Cir. 2014). “” 23 C.F.R. § 774.9 (a). Sites are identified as eligible so long as they are included in, or eligible for inclusion in the National Register of Historic Places.”
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