Wild and scenic rivers may qualify as a Section 4(f) property, but designation of a river under the Wild & Scenic Rivers Act does not invoke Section 4(f) in the absence of significant Section 4(f) attributes and qualities. The Federal Highway Administration (FHWA), in consultation with the river-administering agency, determines on a case-by-case basis whether Section 4(f) applies. For example, Section 4(f) may apply to reaches of designated wild and scenic rivers that are publicly owned, open to the public and include recreation as a primary purpose, feature, attribute, or value. Possible application of Section 4(f) is based on potential impacts—either by the permanent or temporary incorporation of land into a transportation facility or by proximity effects (e.g., noise, visual, atmospheric, access)—that could substantially impair protected public parks, recreation areas, wildlife/waterfowl refuges, or historic sites.
An agency of the DOT (usually the FHWA) cannot approve a transportation project or program requiring the use of Section 4(f) properties unless the following conditions apply:
- 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 the Section 4(f) property resulting from the use.
- OR -
- 1) The DOT agency has determined, after public notice and opportunity for public review and comment, that the transportation program or project will not adversely affect the activities, features, and attributes of the Section 4(f) property; AND
- 2) The finding of the DOT agency has received concurrence from the river-administering agency (officials with jurisdiction).
The DOT, in coordination with the river-administering agency, performs compliance reviews for qualifying properties. While Section 4(f) requires that the river-administering agency’s recommendations for minimizing harm are considered during the planning process, the authority to administer and make Section 4(f) approvals ultimately resides with the DOT. The river-administering agency’s concurrence on any DOT Section 4(f) compliance documents should clearly state that its concurrence is contingent upon a favorable final Section 7 determination for the project.