While Section 4(f) use generally refers to the four main categories addressed in Types of Use, there is a wide range of situations that may also constitute an adverse impact to, or occupancy of, a Section 4(f) resource. We refer to these unique situations broadly as Other Considerations. Some of these situations may be characterized as use, per se, while others may not. This section of the document introduces you to the ones you're most likely to encounter:

JOINT DEVELOPMENT
Joint development involves recreational facility planning that reserves a portion of land for future transportation use. The reserved area may be used for recreational purposes until needed as part of a proposed roadway. Because it is assumed during the planning process that the reserved land may be used at some point in the future, Section 4(f) does not apply.

Documented evidence must be provided in order to indicate that the property was reserved for transportation use before or at the same time it was designated a Section 4(f) resource. The absence of such documentation and coordination may result in a Section 4(f) use.

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AIR RIGHTS
Air rights, under Section 4(f), typically refer to areas in the vicinity of an elevated structure such as a bridge or ramp. The statute does not necessarily apply to the placement of these structures, unless one of the following occurs:

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TEMPORARY OCCUPANCY OF A HIGHWAY RIGHT-OF-WAY
This situation involves a highway Right-of-Way (ROW) that is temporarily occupied and used for park & recreational purposes. Sometimes park and recreational facilities will be placed, with or without authorization, in a ROW.

If the Department of Transportation (DOT) has allowed an authorized use of the ROW, it is a good idea to develop documentation as protection from an unforeseeable designation of the project area as a Section 4(f) resource. Documentation may include a limited occupancy permit with reversible clause, thereby creating no permanent rights to, or designation of, the property as a park or recreational resource.

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LATE DISCOVERY
Late discovery refers to the discovery of a Section 4(f) resource after the National Environmental Policy Act (NEPA) or location approval. Be aware that, depending on the particular resources and uses involved in the project, the preferred alternative prior to the late discovery may change.

If a late discovery occurs during the construction phase of a project, coordination with the Federal Highway Administration (FHWA) is required. From that coordination, a supplemental or revised Section 4(f) evaluation is likely to be required. The findings of the coordination and documentation may result in changes to the construction plans, including the selection of a new alternative. Failure to make such changes, or to undertake proper coordination and provide documentation, could result in Section 4(f) use.

Note: Every precaution should be taken to avoid this type of use, since it may cause considerable disruption to a project schedule.

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LATE DESIGNATION
Late Designation refers to the change of a property's Section 4(f) status after the project has begun. The use of a property is not considered a Section 4(f) use under the following conditions:

Note that the effort to identify potential Section 4(f) properties requires documention of thorough communication with the likely federal, state and local park officials with jurisdiction. The absence of such documentation and coordination may result in a Section 4(f) use.

Note: As with Late Discovery, every precaution should be taken to avoid this type of use, since it may cause considerable disruption to a project schedule.

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WETLAND MITIGATION
In urban areas where there is limited open space, wetland mitigation projects are commonly proposed within public parks and other publicly owned lands. These projects typically require the preparation of a Section 4(f) evaluation because they involve the acquisition of public parklands, and such acquisitions generally constitute use. However, there are circumstances under which the acquisition of public parklands for wetland mitigation does not constitute use and would therefore not require an evaluation. In order for wetland mitigation to occur within public parkland boundaries, the mitigation must be requested in writing by the official with jurisdiction, who must indicate that the creation of a wetland fully conforms with, and serves to implement, the long-range plans of the area. If the public parkland changes ownership, a Section 4(f) evaluation must be prepared.

Before the mitigation plans are finalized, the DOT must review the proposal and the official with jurisdiction's request and compliance statement. If the DOT concludes that the proposal fully satisfies all conditions, the mitigation project can proceed.

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TUNNELING
Section 4(f) does not apply to tunneling as it relates to parks and recreation areas and refuges, unless the activity impacts the purposes for which the resource was established. Nor does the statute apply to tunneling as it relates to cultural resources, unless the activity adversely affects the historic integrity of a historic site or an archeological site that warrants preservation in place and is on or eligible for the National Register of Historic Places (NRHP).

If any of the exceptional conditions indicated above exist, tunneling would constitute a Section 4(f) use.

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BOAT ACCESS RAMPS
Section 4(f) use, as it relates to boat access ramps, must be considered in conjunction with Section 147 of the Federal Aid Highway Act of 1976. Section 147 provides for the construction of access ramps to public boat launching areas adjacent to bridges being built or modified on federal highways. Such access ramps are not considered an integral or necessary part of bridge projects, nor do they provide any transportation benefits. The DOT and the Department of the Interior (DOI) have agreed that a consistent reading of both laws (Sections 147 and 4[f]) precludes their simultaneous application to boat launching ramps in parks and recreation areas protected by Section 4(f). Consequently, Section 4(f) does not apply to boat access ramps in these areas, although it does apply to the transportation projects with which they are associated.

In short, transportation projects involving the construction of boat access ramps may involve Section 4(f) use; however, the construction of boat access ramps does not, in itself, generally constitute use.

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TRANSPORTATION ENHANCEMENT ACTIVITIES
In 1991, Section 1007 of the Intermodal Surface Transportation Efficiency Act (ISTEA) established funding for the Transportation Enhancement Activities (TEAs), which we have included among the other uses in this section. Many of the resources enhanced by these TEAs are protected by Section 4(f). There are 12 TEAs currently available for federal funding:

Of the 12 TEAs, seven have the greatest likelihood of impacting a Section 4(f) resource— 1, 3, 4, 6, 7, 10 and 12. The remaining five (2, 5, 8, 9 and 11) are rarely encountered in conjunction with Section 4(f). Our concern in the remainder of this section is with the former seven, only.

TEAs 1, 4, 7 and 10
The relationship between these four TEAs and Section 4(f) is fairly straightforward. If a transportation project involves any of them, there is a Section 4(f) use.

The resources involved in TEA 1 (pedestrian and bicycle facilities) are covered by a Section 4(f) memorandum dated May 23, 1977 and titled "Negative Declaration/Section 4(f) Statement for Independent Bikeway or Walkway Construction Projects." The resources involved in TEAs 4 and 7 (scenic or historic highway programs, including tourist and welcome centers; and the rehabilitation and operation of historic transportation buildings, structures or facilities) are covered by 23 CFR 771.135(f), a portion of Section 4(f) regulations that outlines conditions under which the statute would not apply. These conditions include projects that restore, rehabilitate, or perform maintenance on transportation facilities that are on or eligible for the NRHP.

By contrast, conditions under which the statute would apply include those where there is no adverse effect to the historic qualities of the transportation facility. The term facility, as used here, includes buildings and structures with a transportation-related history.

The resources involved in TEA 10 (archeological planning and research) are covered by the Section 4(f) provisions of 23 CFR 771.135(g). According to these provisions, the statute does not apply if an archeological resource on or eligible for the National Register is important only for the data it contains and does not warrant preservation in place.

TEAs 3, 6 and 12
Unlike the four preceeding TEAs, TEAs 3, 6 and 12 do not have such a clear relationship with Section 4(f). These three activities (the acquisition of scenic or historic easements and sites, historic preservation, and the establishment of transportation museums) must be evaluated on a case-by-case basis. The primary factor in determining whether Section 4(f) applies involves the acquisition or permanent incorporation of land for transportation purposes. Section 4(f) applies if scenic easements, scenic and historic sites, or the preservation of historic structures are incorporated within land required for transportation purposes.

NOTE: The list of Other Considerations described in this section of the document is not exhaustive, so be aware that you could come across one that we haven't included here. When in doubt, consult with the FHWA Maryland Division Office for assistance (410-962-4342) or FHWA's Resource Center in Baltimore (410-962-0093), or visit FHWA's RE:NEPA discussion page.

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