OBJECTIVES
This portion of the document will acquaint you with three concepts
that are fundamental to Section 4(f) :
When you have finished, you should have a basic understanding of
the following:
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The terms avoidance, minimization and mitigation
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The term feasible and prudent and its relationship
to avoidance
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The term least harm and its relationship
to minimization
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The following rules of thumb:
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If an avoidance alternative is determined
to be feasible and prudent, it must be selected.
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If no feasible and prudent avoidance alternative
exists, the alternative that will cause the least harm must
be selected.
ORIENTATION
Before an alternative involving the use of a Section 4(f) resource can
be selected, avoidance alternatives and minimization measures must be
considered. Avoidance alternatives are those that avoid the use of Section
4(f) resources; minimization measures are efforts to minimize the impact
of a Section 4(f) use.
Minimization measures may include mitigation, which is compensation
for Section 4(f) impacts that cannot be avoided. Mitigation usually
entails replacement of Section 4(f) property or facilities.
AVOIDANCE
Avoidance alternatives are those that entirely avoid the use of Section
4(f) properties. A key requirement of Section 4(f) compliance is an
attempt to show whether or not a property can be completely avoided.
When the alternatives under consideration use land from one or more
Section 4(f) resources, alternatives that avoid each of the resources
must be evaluated.
Alternatives should be within a reasonable proximity to the property
and consider the feasibility of minor alignment shifts, reduced cross-sections,
retaining structures, modifications to the project and so forth. Avoidance
alternatives that are eliminated from detailed study should be discussed
in the documentation with a clear explanation of why they are not feasible
and prudent.
Note: Care should be taken to demonstrate consistent application
of design standards throughout the project. For example, it would make
no sense to propose the use of a reduced median width and narrower shoulders
to minimize impacts to a non-Section 4(f) wetland, while failing to
apply the same logic to protect a Section 4(f) municipal park.
Feasible & Prudent
The most important point to remember in selecting an alternative
is this:
There is no simple definition of feasible and prudent, but there are
some clear guidelines as to what is not feasible and what is
not prudent:
Truly unique problems exist when an avoidance alternative creates unusual
factors or costs, or community disruption of an extraordinary
magnitude. Examples include unacceptable social, economic or environmental
impacts; serious community disruption; safety and geometric problems;
or excessive construction costs. An accumulation of these problems (as
opposed to a single factor) may be a sufficient reason to use a Section
4(f) resource, but only if the problems are truly unique. Excessive
cost alone will not necessarily prevent an alternative from being considered
prudent.
Determining whether an alternative is feasible and prudent may be viewed
as a balancing act that involves coordination between the Department
of Transportation (DOT) and the state transportation agency. A determination
of an alternative's feasibility and prudence must take into account
not only the impacts to Section 4(f) resources, but also the impacts
to non-Section 4(f) resources, as well the importance of the project
itself.
Furthermore, the impacts (to Section 4[f] and non-Section 4[f] resources)
associated with one alternative must be compared to the impacts associated
with other alternatives. This process is critical for determining whether
an avoidance alternative is feasible and prudent. For example, an avoidance
alternative resulting in the displacement of 50 homes may not appear
to be feasible and prudent until a comparison reveals that other alternatives
that do not avoid Section 4(f) resources result in similar impacts,
in which case the community disruption would be relatively equal among
the alternatives considered.
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MINIMIZATION
Once it has been determined that no feasible and prudent avoidance alternative
exists, minimization efforts should be pursued. Minimization entails
measures to reduce the impact to a Section 4(f) resource.
Least Harm
The most important point to remember about mitigation is this:
All possible planning to minimize harm should be determined through
consultation with the official
with jurisdiction. Such minimization measures may include (but are
not limited to) the following:
When considering minimization measures, be sure to note that not all
uses of a Section 4(f) resource are necessarily equal. Impacts may vary
according to a number of factors, including the following:
These factors determine the level of impact on a resource. Again, the
selected alternative must be the one that causes the least harm, the
least overall impact.
For example, if one alternative impacts only a small corner of a park
and another impacts a much larger area along an entire side of the park,
the alternative that impacts only the corner must be selected, all other
factors being equal. If one alternative catches the edge of a Section
4(f) property and another bisects it, the one on the edge must be selected—again,
assuming all other factors are equal. If several small portions of a
Section 4(f) property are being evaluated and one of them is going to
be impacted, the impacted portion must be the one with the least severe
impact—the one that has open land, for example, rather than a historic
house; or a ravine, rather than a baseball field.
In short, not all Section 4(f) resources are equal. A comparison of
all impacts, an evaluation of every alternative, and an examination
of the function of each Section 4(f) resource will help minimize harm
and thus determine which alternative is considered the most appropriate.
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MITIGATION
After all minimization efforts have been explored, mitigation measures
are typically pursued. Mitigation entails measures to compensate for a
Section
4(f) impact that cannot be avoided. It usually entails replacement
of land and facilities of comparable value and function, or monetary compensation
that can be used to enhance the remaining property around a Section 4(f)
resource.
Mitigation of historic sites may include the placement of vegetative
buffers and screening to the project area. It usually entails measures
that have been designed to preserve the historic integrity of the site
and that have been agreed upon—in accordance with the Advisory
Council on Historic Preservations regulations (36 CFR, Part 800)—by
the Federal
Highway Administration (FHWA), the State
Historic Preservation Officer (SHPO) and, as appropriate, the Advisory
Council on Historic Preservation (ACHP).
The cost of mitigation should be a reasonable public expenditure in
light of the severity of the impact on the Section 4(f) resource.
Mitigation may include one or more of the following measures, as approved
by the FHWA:
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