Section 4(f) protects parks from paving
- one of our most important laws
- ODOT tried to remove 4(f) protection
- legal background
- constructive use
- 2005 SAFETEA-LU law reduced 4(f) but not enough for WEP
Section 4(f) of the 1966 Transportation Act -- which prohibits federally funded roads through parks -- is one of our most important environmental laws.
“The US has as many acres of roads as wilderness”
– Gloria Flora, former National Forest supervisor,
Public Interest Environmental Law Conference, March 9, 2002
“It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.”
– 82 Stat. 824, 49 U.S.C. 1653 (f)
“Congress clearly did not intend that cost and disruption of the community were to be ignored by the Secretary [of Transportation]. But the very existence of the statutes [4f] indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extra-ordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.”
– U.S. Supreme Court, “Citizens to Preserve Overton Park v. Volpe,” 401 U.S. 402 (1971)
Section 4(f) of the 1966 Transportation Act is one of our most important, and strongest environmental laws. Indeed, the FHWA report “Summary of Environmental Legislation Affecting Transportation” (http://www.fhwa.dot.gov/environment/env_sum.htm) lists 4(f) second, only after the National Environmental Policy Act of 1969 (which requires the Environmental Impact Statement process, among other things).
4(f) is not merely a procedural law that merely forces adequate disclosure of impacts -- it requires that avoidance of destruction be prioritized, with minimization of impacts if avoidance is not possible. It is a tough hurdle that has prevented many highway boondoggles, protected many public parklands, and forced highway departments from coast to coast to scale back many of their proposals to be more compatible with the surrounding environment.
Section 4(f) has probably stopped more destructive highways than any other law.
The famous Overton Park case prevented I-40 from tearing through a park in Memphis,TN (the park is still there to this day). Also in the 1970s, I-70 was blocked from bulldozing through two parks in southwestern Baltimore, MD (a city that does not have a lot of natural parks) and the funds were transferred to Baltimore’s subway system.
In 1997, plans for an extension of I-370 in Maryland, called “Inter County Connector” (part of the Washington Outer Beltway) were put on hold after the FHWA determined that the preferred alternative lacked legal sufficiency regarding 4(f). That alternative would have bisected 6 stream valley parks over 18 miles (going from park to park). Unfortunately, the highway department redesigned the project to avoid part of one of the parks, falsely claimed an impact to another park was not actually in parkland (which the "environmental" lawsuit failed to focus on) and the project was approved in 2006.
4(f) is not a blanket prohibition on using park lands - it merely is a tool to reduce impacts if the highway can be shown to be unavoidable. However, this reduction can include a shift in alignment from going through the heart of a park to clipping the edge of one, or a change in design feature in the highway to reduce park impacts.
FHWA and ODOT tried to remove 4(f) protection
FHWA’s “Section 4(f) Policy Paper” provides guidance on how to determine whether 4(f) applies www.fhwa.dot.gov/environment/guidebook/vol2/4fpolicy.htm 4(f) does apply to the West Eugene Wetlands, and also applies to several public properties immediately west of the WEP terminus that would be impacted if the WEP forced widening of Highway 126 to Veneta.
Webster’s dictionary defines a “park” as “a piece of ground in or near a city or town kept for ornament and recreation, an area maintained in its natural state as a public property” (there is no definition for “open space”) The West Eugene Wetlands qualify as a park under this commonsense definition, and are the largest natural area in public ownership inside the Eugene-Springfield UGB, home to numerous rare plants and animals, some of them on the Endangered species list.
4(f) prohibits the use of federal transportation dollars in park, recreation area, or wildlife and waterfowl refuges, and historic sites. It is not necessary for a public property to be called a “park” or a “refuge” to receive 4(f) protection if the land functions as a refuge. This is why 4(f) was properly applied in the 1997 SDEIS.
Part of the West Eugene Wetlands were renamed “Bertelsen Nature Park” in 2002?, after the 4(f) issue was raised by WEP opponents.The fact that it is usually cheaper to bulldoze a freeway through public parklands than private property is precisely the reason why Congress enacted Section 4(f).4(f) states that “Any use of lands from a section 4(f) property shall be evaluated early in the development of the action when alternatives to the proposed action are under study.” This last-minute effort to gut legal protection for these public lands is in violation of 4(f), since this determination was not “early in the development of the action” and there were no “alternatives” under formal consideration in 1999, since the SFEIS was in draft stage by then, and the draft SFEIS recommended the WEP “Modified Project” as the Selected / Preferred Alternative.
ODOT’s June 15, 1999 letter to FHWA claimed that 4(f) did not apply because “the intent of Section 4(f) is to protect wildlife and waterfowl refuges, not plant refuges. Our legal staff ... determined that a primary purpose of the BLM lands is the protection of plant communities which are not a use protected by Section 4(f).The West Eugene Wetlands are a refuge for the Federal Endangered Fender’s Blue Butterfly (which is in the animal kingdom, not the plant kingdom). The butterfly is totally dependent on Kincaid’s lupine, an endangered plant found on the BLM properties (and very few other places). The Wetlands refuge also is home to the Western Pond Turtle, as well as numerous species not normally found inside Urban Growth Boundaries. There is nothing in the Section 4(f) law that states that a refuge has to ONLY protect animals, not both plants and animals.
The BLM’s website lists notes some of the species of waterfowl
and wildlife in the West Eugene Wetlands”
West Eugene Wetlands Kingfisher, heron, ducks, geese, cranes, neotropical birds, seagulls, osprey, quail, and much more. West Eugene to Fern Ridge Reservoir
Stewart Pond – Pond turtles, frogs, neotropical birds, heron, kingfisher, ducks Bertelson Road near Bailey Hill in west Eugene
Another excuse used by ODOT and FHWA was to claim that the West Eugene
Wetlands are a “multiple use” property and therefore not covered
by 4(f). Multiple-use generally refers to public lands that are managed
for resource extraction. If Highway 126 was being re-routed in the Coast
Range or Cascades through the National Forest or BLM checkerboard O&C
lands, which are managed for timber extraction, 4(f) would not apply unless
there was a campground, trail, wilderness area or similar facility. (National
Parks are subject to 4(f), but there’s only one in Oregon.) However,
the West Eugene Wetlands are not “multiple use” land –
there is no resource extraction permitted on the BLM properties. While
the Wetlands Plan permits destruction of wetlands on nearby PRIVATE properties,
the Plan prohibits fill activities on the BLM owned properties in West
Eugene. The most recent BLM planning document, West Eugene Wetlands Recreation,
Access and Environmental Education Plan and Revised Environmental Assessment,
June 19, 2001.
http://www.edo.or.blm.gov/nepa/coastrange/ea/wetlandPlan.pdf, only mentions “multiple use” by referencing West Eugene Wetlands Plan Goal 3.8 “Allow for multiple uses of protected wetlands, while ensuring that functions and values are maintained and enhanced.” In this context, this does not mean both resource extraction and recreation, but rather the protection of natural habitats, restoration of natural habitats, recreational activities and environmental education. Multiple activities, but not “multiple use” in the context of 4(f).
The West Eugene Wetlands management should be considered closer to designated “wilderness,” not “multiple use.” While the West Eugene Wetlands Plan allows both preservation and destruction of natural areas, the subset of wetlands managed by the BLM do not.
Perhaps the Willamette National Forest Opal Creek Scenic Management
Area is the closest analogy to the West Eugene Wetlands management plan
– this new management policy prohibits resource extraction (timber
sales) but allows the existing inholding (Friends of Opal Creek) to use
their vehicles on the mining road to access their facility, although the
public is not allowed to drive on the road. Similarly, the West Eugene
Wetlands does not fit the legal description of designated Wilderness,
but the management prescription is much closer to Wilderness than the
traditional definition of “multiple use.”
Forest Service website for Opal Creek www.fs.fed.us/r6/willamette/mgmt/opalcreek/opalcreekfirst.htm
Friends of Opal Creek site – www.opalcreek.org
To provide controlled access to the sites and to facilitate educational and recreational opportunities, the BLM has constructed viewing platforms, walking trails, boardwalks and a wheelchair accessible photography blind. Additional facilities are planned for future construction as funds become available.
“ODOT asked BLM whether any of its lands function primarily as sanctuaries or refuges for the protection of species. BLM responded that some of its properties do function primarily for the protection of wetland plant communities ... . This was the basis of the original determination that the BLM-owned lands should be protection (sic) under Section 4(f) as well as a major factor in its reversal. Section 4(f) only applies to refuges for waterfowl and wildlife, not plants.” 3/19/2002
The West Eugene Wetlands are a refuge for the Federal Endangered Fender’s Blue Butterfly (which is in the animal kingdom, not the plant kingdom). It is totally dependent on the Kincaid’s lupine, an endangered plant found on the BLM properties. The Wetlands refuge also is home to the Western Pond Turtle, as well as numerous species not normally found inside Urban Growth Boundaries. There is nothing in the Section 4(f) law that states that a refuge has to ONLY protect animals, not both plants and animals.If ODOT and FHWA persist with their claims that the West Eugene Wetlands is not a refuge for animals and has no recreational functions, then the new DEIS should describe what actions prompted this change (other than the BLM’s “Non Disposal” policy for LWCF properties). The new DEIS should disclose if there is any precedent for removing 4(f) protection for public lands bought with LWCF money that is critical habitat for endangered plants and animals at the final stage of the NEPA process.57 decibels is the standard required for "tracts of land in which serenity and quiet are of extraordinary significance and preservation of those qualities in essential if the area is to continue its intended purpose." 23 CFR Ch.1 (4-1-95 Edition) 771.135(p)(4)(i) states that a "constructive use" of parkland occurs if "the projected noise level increase attributable to a project substantially interferes with the use and enjoyment of a noise-sensitive facility of a resource protected by section 4(f) ... [such as] enjoyment of an urban park where serenity and quiet are significant attributes."
FHWA 4(f) paper
6. Public Multiple-use Land Holdings
Question: Are multiple-use public land holdings (e.g., National Forests, State Forests, Bureau of Land Management lands, etc.) subject to the requirements of Section 4(f)?
Answer: Section 4(f) applies to historic sites and only to those portions of lands which are designated by statute or identified in the management plans of the administering agency as being for parks recreation, or wildlife or waterfowl refuge purposes and which are determined to be significant for such purposes. For public land holdings which do not have management plans (or where existing management plans are not current) Section 4(f) applies to those areas which function primarily for Section 4(f) purposes. Section 4(f) does not apply to areas of multiple-use lands which function primarily for purposes not protected by Section 4(f).
WetlandsRecAccEEPlan,June 19, 2001
D. Issues Eliminated from Further Study
Inherent to the major issues there were issues and concerns that the planning team
evaluated but did not pursue further within this plan due to their readily apparent incompatibility with the fundamental goals of the West Eugene Wetlands. For example, the team recognized that there is a tradition of equestrian use along the Amazon canal service road. There is also compelling evidence that exotic weed species have been introduced into many areas via horses, and that there would be a higher likelihood of failure in native habitat restoration efforts if horses continued to travel through the restored parts of the wetlands. The team therefore determined that horses would need to be excluded from the overland use in the wetlands. With regard to the Amazon/Fern Ridge Bike Path, the problem of horse droppings interfering with the designed uses of the path or providing the vector for introduction of exotic weed species, did not appear to be readily resolvable if horse use were to continue, hence the team felt that horses would need to be excluded.
Part IV. The Management Program
A. Management Theme
The West Eugene Wetlands (WEW) will be managed to protect and enhance its natural values while providing opportunities for visitors to experience them. Recreation experience opportunities available to the visitor will cover a broad spectrum, ranging from the unconfined semi-primitive settings where visitors must be self-reliant and leave no lasting imprint upon the land, to developed settings and facilities where the visitor's comfort, health, safety and informational needs or educational interests are provided for in deliberately modified or improved settings. The WEW will be managed to protect some semi-primitive recreation opportunities and to insure that these areas are not impaired by either direct BLM management activity, or the actions of others.
The visitor management philosophy will rely on both off-site management actions as well as on-site personnel plus physical improvements to harden heavily used sites to protect resources from damage. The use of interpretive and educational visitor contacts and materials will be the primary management tools. Design of structures and recreation facilities will consider the existing ecological values, local design themes and be largely rustic in appearance. The development of recreation facilities will be the minimum required to manage the visitors in concert with the ecological capacities of the ecosystems.
Management Area 1 – from Wetland Plan
“Primary recreation activities managed for within this area include perimeter nature study, and wildlife viewing. Access to these areas will be limited to accommodate ongoing maintenance, monitoring, and ecological studies. The use of signage, fencing, or other access control may be necessary in some cases to limit access to these areas.” WEW west of Danebo
WetlandsRecAccEEPlan,June 19, 2001, p. 43
weather could result in hikers or equestrians damaging trails which would withstand use under normal weather conditions.
C. Limits of Acceptable Change
Both the physical and social settings, consisting of the measurable criteria under the Area objectives for each area, need to be monitored to insure that visitor use is consistent with the plan. Monitoring is accomplished by establishing thresholds for measurable resource conditions. These thresholds represent the limits of acceptable change or LAC.
1. Management Area 1 (Protected habitat Areas).
a. Physical Setting Criteria Thresholds
1. Visual or audio intrusions must not occur in the foreground from other than scientific/recreational use.
2. Irreversible evidence of man must not occupy the area.
3. Air, water and/or noise pollution must not exceed low intensity and frequency of occurrence.
4. A predominately natural environment must be maintained. No more than 70 percent of the area may contain subtle resource modifications. No more than 3 percent of the area may contain obvious resource modifications. This includes the sum total of both public and private lands within the area.“the agency with jurisdiction over the property, typically the owner, is asked to identify the primary functions of the property. FHWA then considers input from the agency with jurisdiction, reviews applicable management plans and other documents, and determines the applicability of Section 4(f).” 3/18/2002
Prohibiting horses or off-road vehicles is not in conflict with 4(f) status for these lands.
West Lawn Memorial Cemetery and 4(f)
“Neither the West Lawn Memorial Park nor the historic Bethesda Lutheran Church are eligible for the National Register” of historic places. (SDEIS pp. 3-34, 3-37) However, given that the cemetery is about a century old – which is rare in Eugene – the cemetery still meets the requirements of 4(f) as indicated in the FHWA 4(f) Policy Paper:“
For purposes of Section 4(f), a historic site is significant only if it is on or eligible for the National Register of Historic Places, unless the FHWA determines that the application of Section 4(f) is otherwise appropriate. If a historic site is determined not to be on or eligible for the National Register of Historic Places, but an official (such as the Mayor, President of the local historic society, etc.) provides information to indicate that the historic site is of local significance, FHWA may apply Section 4(f). In the event that Section 4(f) is found inapplicable, the FHWA Division Office should document the basis for not applying Section 4(f). Such documentation might include the reasons why the historic site was not eligible for the National Register.” (FHWA 4(f) Policy Paper)
At the very least, the Cemetery would have a significant “constructive use” due to the visual and noise impacts. If the WEP is ultimately built to six lanes and/or results in a larger interchange than specified in the Belt Line EA (eastbound WEP to northbound Belt Line flyover ramp, eastbound WEP to southbound Belt Line direct ramp), then this would be a direct use of 4(f) protected land.
www.fhwa.dot.gov/environment/guidebook/vol2/4fpolicy.htm Section 4(f) Policy Paper
4f policy paper
2. Public Parks, Recreation Areas, and Wildlife and Waterfowl Refuges
Question: When is publicly owned land considered to be a park, recreation area or wildlife and waterfowl refuges? Who makes the decision?
Answer A: Publicly owned land is considered to be a park, recreation areas, or wildlife and waterfowl refuge when the land has been officially designated as such or when the Federal, State, or local officials having jurisdiction over the land determine that one of its major purposes or functions is for park, recreation, or refuge purposes. incidental, secondary, occasional, or dispersed recreational activities do not constitute a major purpose. For the most parts the "officials having jurisdiction" are the officials of the agency owning or administering the land. There may be instances where the agency owning or administering the land has delegated or relinquished its authority to another agency, via an agreement on how some of its land will be used. The FHWA will review this agreement and determine which agency has authority on how the land will be used. If the authority has been delegated/relinquished to another agency, that agency must be contacted to determine the major purpose(s) of the land. After consultation and in the absence of an official designation of purpose or function by the officials having Jurisdiction, the FHWA will base its decision on its own examination of the actual functions that exist.
The final decision on applicability of Section 4(f) to a particular type of land is made by FHWA. In reaching this decision, however, FHWA normally relies on the official having jurisdiction over the land to identify the kinds of activity or functions that take place.
[note: in mid-March 2002, Elton Chang of the FHWA Oregon Division told me that he was not familiar with the BLM’s 2001 Environmental Assessment for recreation in the West Eugene Wetlands.]
Question B: How should the significance of public parks, recreation areas, and waterfowl and wildlife refuges be determined?
Answer B: "Significance" determinations (on publicly owned land considered to be parks recreation areas, or wildlife and waterfowl refuge pursuant to Answer A above) are made by the Federal, State, or local officials having jurisdiction over the land. For the most part, the "officials having jurisdiction" are officials of the agency owning or administering the land. For certain types of Section 4(f) lands, more than one agency may have jurisdiction over the site. The significance determination must consider the significance of the entire property and not just the portion of the property being used for the project. The meaning of the term "significance" for purposes of Section 4(f) should be explained to the officials having jurisdiction. Significance means that in comparing the availability and function of the recreation, park, or wildlife and waterfowl refuge area with the recreational, park, and refuge objectives of that community, the land in question plays an important role in meeting those objectives. If a determination from the official with jurisdiction cannot be obtained, the Section 4(f) land will be presumed to be significant. All determinations (whether stated or presumed) are subject to review by FHWA for reasonableness.Question C: Are publicly owned parks and recreation areas which are significant but not open to the public as a whole, subject to the requirements of Section 4(f)?
Answer C: The requirements of Section 4(f) would apply if the entire public is permitted visitation at any time. Section 4(f) would not apply when visitation is permitted to only a select group and not the entire public. Examples of such groups include residents of a public housing project; military and their dependents; students of a school; and students, faculty, and alumni of a college or university. The FHWA does, however, strongly encourage the preservation of such parks and recreation areas even though they may not be open to the public at large.
Applicability of Section 4(f) to Wetlands under Easement to the U.S. Fish and Wildlife Service
Date: May 3, 1983
From: Chief, Environmental Programs Division HEV-11
To: Mr. Morris C. Reinhardt HEP-08 Regional Federal Highway Administrator, Denver, Colorado
The following is an explanation of the reasons why Section 4(f) applies to wetlands under easement to the U.S. Fish and Wildlife Service. Three points are addressed in making this determination, First, whether these easements constitute public ownership. Secondly, whether wildlife refuges must be open to public use or access to be protected by Section 4(f). Finally, whether these protected wetlands are wildlife and waterfowl refuges.
Although not owned in fee simple, two factors in these easements result in a public ownership determination. “Publically owned” does not have to be ownership in fee to qualify for Section 4(f) protection, The U.S. Fish and Wildlife Service exercises control, although not complete control, over the activities allowed on the subject property to a sufficient degree to assure that it will be available for wildlife habitat. Also, and more importantly, these easements are in perpetuity. The permanence of these easements and the control over the property clearly indicate a degree of ownership. Where the easements are short-term or revokable, Section 4(f) may not apply. The application of Section 4(f) protection would have to be determined on a case-by-case basis.
We recognize that access to these wetlands by the public can be controlled by the private landowner and that the landowner maintains full use of the land. However, the term "public" when applied to parks and recreation areas refers to public purposes and benefit as well as public access and use. Public access and use are not essential for wildlife refuges provided there is some public purpose or benefit served. It is generally held that “public” wildlife refuges need only be for public purpose or benefit to qualify for Section 4(f) protection, provided there is at least partial ownership by some level of government.
The final question is whether these wetlands under easement are wildlife and waterfowl refuges. These easements have been acquired by the Department of the Interior under the authority of the amended Migratory Bird Hunting Stamp Act. As defined in 50 CFR 25.12, “Waterfowl production area means any wetland or pothole acquired pursuant to . . . the amended Migratory Bird Hunting Stamp Act . . . and administered by the U.S. Fish and Wildlife Service as part of the National Wildlife Refuge System” While birds may not be protected from in-season hunting within the wetland easement areas, such areas are still considered a refuge because of-their primary purpose. Public Law 89-669, Section 4(d), states 'The Secretary is authorized to ... permit the use of any area within the (National Wildlife Refuge) System for any purpose, including but not limited to hunting, fishing, public recreation . . . whenever ... such uses are compatible with the major purposes for which such areas were established .” The purpose of the easements is to protect the nesting, resting, feeding and habitat areas of certain migratory birds for the reproduction and maintenance of the species.
It is our conclusion that the subject wetlands are publicly owned wildlife refuges administered for public benefit. Therefore, Section 4(f) protection must be applied to these properties.
We hope the above information explains the reasoning behind this determination.
1999: 4(f) removal attempt
In 1999, ODOT requested that FHWA remove Section 4(f) designation for the BLM’s West Eugene Wetlands parcels in the path of the parkway. This action was done without any public notice or input, and was only made known to any citizen in 2002 when the author of this report was told about it by an ODOT official. Section 4(f) is one of the strongest federal environmental laws, and one of the most important for protecting public lands from ill-conceived road projects.
ODOT officials declined to inform anyone that FHWA had removed 4(f) from the process during the October 1999 public information session, the discussions at the Eugene City Council about segmentation and fiscal constraint during 2000 and 2001, the June 2001 “West Eugene Charette” or in Oregon Transportation Commissioner Randy Pape’s and ODOT Director Bruce Warner’s public statements during the debates leading up to Measure 20-54 in November, 2001. ODOT did tell the Eugene Planning Commission that they had done this after questions were raised, but ODOT not make a more public revelation about their actions. ODOT did tell this the OTC about the 4(f) removal in its September 2001 packet about the WEP, but they did not publicize this information. In addition, FHWA has never made any known public comments about their decision regarding 4(f).
It is likely that the removal of 4(f) was due to the BLM’s objection to use of Land and Water Conservation Funds -- an act of pique by pissed planners, not a serious legal analysis. Section 4(f), which prohibits use of parklands and public conservation areas unless there are no prudent and feasible alternatives, is a different law than the requirements mandating protection of LWCF purchased nature refuges. In other words, the ODOT / FHWA effort to evade 4(f) analysis did not affect the fact that LWCF lands cannot be used for highway construction.
Technically, the FHWA removal of 4(f) was not a final decision, since it was not published as part of a Record of Decision. But its removal ensured the disenfranchisement of citizens from the NEPA process, since there was no way for citizens to learn about this decision without constant pestering of ODOT officials, which is not a good public involvement process. Fortunately, the 2004 Re-evaluation suggests that 4(f) will probably be reapplied to the BLM lands, and 4(f) is likely to ensure that an alternative similar to WETLANDS must be given full consideration.
Timeline of removal of 4(f) protection from the West Eugene Wetlands
1997 FHWA/ODOT Supplemental Draft Environmental Impact Statement includes section on 4(f)
“The BLM and the City of Eugene are managing properties within the plan area as interconnected biological systems, including upland habitats that are functionally tied to these wetland plant communities. The wetland communities, and the entire system, support several species of sensitive plants and animals. Since the BLM and City of Eugene properties function as refuges for the protection of species, they are protected under Section 4(f). The Fern Ridge Path is designated as a major recreation facility in the TransPlan (1986) and the Eugene Parks and Recreation Plan (1989) and is, therefore, a protected Section 4(f) resource.” (SDEIS p. 5-1)
“Obtaining fill material from the Fisher Butte quarry may require use of 4(f) property depending on which access road to the site needs to be used.” (SDEIS p. 5-3)
March 31, 1999 The BLM issues its policy on “Prohibition on Disposal of Acquired Land”
LWCF acquisitions will remain in Federal ownership. Disposal of LWCF-acquired land and interest in land by any means, including exchange, Recreation and Public Purposes lease/patent, and sale is prohibited. The policy of the Department of the Interior (DOI), supported by both the Fish and Wildlife Service and the National Park Service is consistent with BLM’s ‘no disposal’ policy.
The BLM’s ‘no disposal’ policy is based upon the following justifications:
The spirit of the LWCF Act, as authorized in 1965, is based on the protection and preservation of land and interest in land for present and future generations.
The DOI Budget Office unequivocally opposes the concept of disposal. Disposal activity would have a chilling affect on Administrative and Departmental funding support for future BLM LWCF project submissions.
... Disposal activity would risk future Congressional appropriations to both the subject project and to BLM’s national program.
Many LWCF-funded acquisitions are assisted by members of the nonprofit community. The BLM’s ‘trust’ relationship with these organizations would be jeopardized if the BLM entertained disposal of tracts they so diligently assisted with. Internal Revenue Service regulations may negatively impact BLM’s nonprofit partners in disposal situations. ....”
Immediately after the BLM issued this “Non Disposal” policy, ODOT and the Federal Highway Administration, without any public notice, removed “4(f)” designation for the West Eugene Wetlands, claiming that these lands, which have had about $20 million spent on public acquisition and restoration, no longer fit their definition of a “park.” FHWA and ODOT made a number of excuses for this behind-the-scenes decision, but the real reason is probably that 4(f) has managed to prevent a number of stupid, expensive, destructive highway projects from coast-to-coast, and is a major obstacle for WEP approval. However, 4(f) and LWCF are separate legal issues, and the removal of 4(f) did not negate the separate legal hurdles of seizing lands bought with LWCF money.
The BLM's 1999 "Non Disposal" policy for these lands makes it clear that they are not to be used for other purposes (such as highway right-of-way)
The BLM is on record (in 2000) stating that the ONLY way they would even consider a "waiver" of this policy is if the WEP was fully funded -- and the proposed TransPlan amendments that you are reviewing would still be many tens of millions away from full funding of the WEP. Therefore, no waiver is possible.
For the WEP to be built, the BLM must provide a "waiver" for use of these lands bought with Land and Water Conservation Funds. The BLM is on record that they could only consider a waiver if full funding of the highway is available."
In April 1999 ODOT asked the Oregon Department of Justice to review its
appropriateness. DOJ reviewed relevant documents, concluded that the BLM-owned
lands do not qualify for protection under Section 4(f) and recommended
that ODOT ask FHWA to reexamine their earlier determination.”
(ODOT written statement for Eugene Planning Commission, 3/18/2002 session)
June 15, 1999 - ODOT writes a letter to FHWA, Oregon Division requesting reconsideration of 4(f) protection for West Eugene Wetlands
June 30, 1999 - FHWA concurs, grants ODOT’s request (but doesn’t tell the public)
October 1999 - WEP public information meeting at Willamette High School. I attended this, and do not recall seeing any mention that 4(f) protection had been removed from our public lands. This was the first time I ever saw a copy of the SDEIS, and noted that it was also a “Section 4(f)” evaluation. Section 4(f) has been one of my favorite environmental laws for many years, and if there had been any public presentation that FHWA and ODOT had removed its designation, I would not only have noticed this that evening, I would have made it a public issue the next day. If ODOT was interested in public knowledge and participation, it would have included an “errata” explaining the removal of 4(f) protection.
June 18, 2001 - FHWA Oregon Division Administrator Dave Reilly attends West Eugene Charette. He did not tell the participants that his agency had removed 4(f) protection from the West Eugene Wetlands.
October 2001 - ODOT director Bruce Warner speaks at Eugene City Club / League of Women Voters forum promoting the highway, yet does not mention the removal of 4(f) protection (even after he was given an article of mine that mentioned this law).
January 2002 - Lane County sponsored a public forum titled “Rivers to Ridges” that showcased the region’s park planning process. Forum organizers did not respond to questions about the WEP’s threat to Eugene’s largest open space, but did show maps of “public lands” in West Eugene that did not distinguish between lands bought for habitat preservation and ODOT “highway reservations” bought for road construction. The handout for that meeting also listed Short Mountain landfill, just south of town, as “open space.” This designation gives new meaning to BRING Recycling’s sarcastic ad to “Ski Short Mountain” (a mound that grows 7 feet taller per year). In this upside-down, Alice-in-Wonderland approach to environmental protection, endangered natural habitats bought with local and federal tax dollars are not considered parklands but the County dump is. Since this is such a good idea, perhaps the County will also consider the sewage treatment center or the proposed jail near Junction City as “open space” while parklands that bureaucrats chose not to call “parks” get decimated by Wal-Marts and freeways.
February 2002 I learned that 4(f) had been removed from these public lands by talking on the phone with an ODOT bureaucrat charged with overseeing the Supplemental Final EIS – an official listed as being employed by the contractor (CH2M Hill) in the 1997 Supplemental Draft EIS. I asked him, incredulous, how the public could know about this decision. He replied that “you can find out about it in the Final EIS.”
This is not sufficient public involvement, given the fact that the last SDEIS is now stale and out of date, missing critical pieces of information.
NEPA’s implementing regulations at 40 CFR 1502.21 states “Incorporation by reference ... Material based on proprietary data which is not itself available for review and comment shall not be incorporated by reference.”
Legal background about Section 4(f)
The Department of Transportation Act, through its "Section 4f", contains specific substantive limits on federal transportation projects:
They cannot harm historic or recreational resources unless no feasible and prudent alternative exists
All planning to minimize harm has been carried out. ...
Especially in the western United States, the federal courts have interpreted Section 4(f) to disapprove freeway construction even when the only alternative was “no project.” In light of the incomplete historical assessment for the Route 710 extension proposal, the availability of a “low build” alternative ... it is extremely unlikely that Route 710 can pass muster under Section 4f.
Section 4(f) of the Department of Transportation Act is one of the two most stringent federal environmental statutes ever enacted by Congress. Only the Endangered Species Act ranks with it. As an historic preservation measure, Section 4(f) stands alone. The statute explicitly prohibits the Secretary of Transportation from approving any project that requires the "use" of historic sites or parkland, unless (1) there is no "prudent and feasible" alternative to the use of the sites, and (2) "all possible planning" has been taken to minimize harm to the sites. 28 U.S.C. ß 138; 49 U.S.C. ß 303©).
In contrast to the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), whose mandates are ultimately "procedural," Section 4(f) imposes a substantive constraint on the exercise of agency discretion.
Section 4(f) operates as a "plain and explicit bar to the use of federal funds" for transportation projects that would use historic sites and parks; "only the most unusual situations are exempted." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411 (1972). Indeed, the language of Section 4(f) shows that Congress intended the protection of parks and historic sites to be given "paramount importance" in the planning of federal transportation projects. Id. at 412-13.
The circumstances under which an alternative can be rejected as not "feasible and prudent" have been very narrowly defined by the Supreme Court in the Overton Park case. The Secretary is not permitted to "engage in a wide-ranging balancing of competing interests." Id. at 413. An alternative is "infeasible" only if it cannot be built "as a matter of sound engineering." Id. at 411. And in order to find an alternative "not prudent" under Section 4(f), the Secretary must find that "truly unusual factors" are present, or that "alternative routes present unique problems," or that the "cost or community disruption" resulting from the alternative would reach "extraordinary magnitudes." Id. Without such a showing, even the asserted "need" for the project cannot suffice to rule out alternatives that would avoid using protected sites. See Stop H-3 Assín v. Dole, 740 F.2d 1442, 1450-58 (9th Cir. 1984), cert. denied, 471 U.S. 1108 (1985).
Agencies may not circumvent the assessment of alternatives by narrowly defining project purposes so that only the project could meet them, or by employing methodologies that slant the analysis in favor of the project. See Sierra Club, Illinois Chapter v. U.S. Department of Transp., 962 F. Supp. 1037, 1042, 1046 (N.D. Ill. 1997); Citizens Against Burlington v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991); accord, Stop H-3 Ass’n v. Dole, 740 F.2d at 1455 n.21; see also note 16 infra.
4(f) also applies to indirect impacts to parklands, called “constructive use.” The FHWA 4(f) Policy Paper notes that “A constructive use of a Section 4(f) site can occur when the capability to perform any of the site’s vital functions is substantially impaired by the proximity impacts from a transportation project. Such substantial impairment would occur when the proximity impacts to Section 4(f) lands are sufficiently serious that the value of the site in terms of its prior significance and enjoyment are substantially reduced or lost.”
The BLM’s August 2000 letter to ODOT found that “The planned recreational access and environmental education facilities and uses would very likely be strongly affected by the parkway. ... The bikepath and environmental education facilities will be a major and significant recreational attraction in the future. Visitors to these facilities will notice the parkway structures and traffic ... so close to them as to have their interpersonal or group communications interfered with by vehicular noise. The WEP will become the dominant feature in the West Eugene Wetlands.”
23 CFR 771.135(p)(4)(i) states that a “constructive use” of parkland occurs if “the projected noise level increase attributable to a project substantially interferes with the use and enjoyment of a noise-sensitive facility of a resource protected by section 4(f) ... [such as] enjoyment of an urban park where serenity and quiet are significant attributes.” This means that Congress intended urban parks that are not highly developed should get equal evaluation under 4(f) as parks with amphitheaters, parking lots, picnic tables and other built-up facilities. Serenity and quiet are one of the key attributes enjoyed by citizens who experience these public lands, a refuge from the noise and busyness of the ugly West Eugene industrial area and West 11th fried food palaces and big box retail stores.The real reason that 4(f) was removed is that FHWA and ODOT are upset that there are legal impediments, and were annoyed that the BLM’s promulgation of their “non disposal” policy for LWCF purchased properties was a bureaucratic way to tell the highway department that they would not be allowed to seize these lands to build their sprawlway.
If ODOT and FHWA persist with their claims that the West Eugene Wetlands is not a refuge for animals and has no recreational functions, then the new DEIS should describe what actions prompted this change, and if there is any precedent for removing 4(f) protection for public lands this late in the development of a NEPA process.
The 2005 "SAFETEA-LU" surface transportation law contains a small loophole for 4(f). "De Minimus" impacts that have a small amount of damage to protected resources are no longer covered by Section 4(f). This means that a transportation project that clips the corner of a 4(f) property may not be subject to this law but a project that goes through the heart of a 4(f) property is still subject to it.
This change to federal law means that an extra lane added to the West 11th / Beltline intersection that clipped the corner of the adjacent BLM property would not be prohibited, but the WEP itself still would be.