Section 4(f) - Constructive Use
NOV 12 1985
From: Director, Office of Environmental Policy
Washington, D.C. 20590
Regional Federal Highway Administrators
Regions 1-10, and Direct Federal Program Administrator
Concern has been expressed from several State highway agencies and from several Federal Highway
Administration (FHWA) offices about the results of litigation on constructive use of Section 4(f) lands.
The two most notable cases are I-CARE in Fort Worth, Texas, and H-3 in Hawaii.
While each of these decisions represented major setbacks for the respective projects and may present
formidable obstacles from the standpoint of nationwide precedent, we believe that FHWA can construct a
defensible position on the proper application of the constructive use doctrine on future projects.
The first step in the defense is a recognition that a constructive use can occur.
The second step is to
establish a threshold or standard for determining when the constructive use occurs.
The FHWA has
determined the threshold for constructive use is proximity impacts which substantially impair the function
of a park, recreation area, or waterfowl or wildlife refuge, or substantially impair the historic integrity of a
Steps 3, 4, and 5 are project specific and should be applied whenever there is a likelihood that constructive
use could occur or will be an issue on a project.
The third step is to identify the functions, activities, and
qualities of the Section 4(f) resource which may be sensitive to proximity impacts.
The fourth step is to
analyze the proximity impacts on the Section 4(f) resource.
Impacts (such as noise, water runoff, etc.)
which can be quantified, should be quantified.
Other proximity impacts (such as visual intrusion) which
lend themselves to qualitative analysis should be qualified.
The fifth step is to determine whether these
impacts substantially impair the function of the Section 4(f) resource or the historic integrity of a historic
This determination on impairment should, of course, be coordinated with the public agency which
owns the park, recreation area, or refuge, or with the State Historic Preservation Officer in the case of
If it is concluded that the proximity effects do not cause a substantial impairment, the FHWA can
reasonably conclude that there is no constructive use.
Project documents should, of course, contain the
analysis of proximity effects and whether there is substantial impairment to a Section 4(f) resource.
Except for responding to review comments in environmental documents which specifically address