---
kind: "section"
citation: "23 C.F.R. § 774.3"
title: "23"
number: "774.3"
heading: "Section 4(f) approvals."
url: "https://uscodex.org/cfr/23/774.3"
---

# §774.3. Section 4(f) approvals.


The Administration may not approve the use, as defined in [§ 774.17](/cfr/23/774.17.md), of [Section 4(f)](/cfr/23/4.md?p=f) property unless a determination is made under paragraph [(a)](#a) or [(b)](#b) of this section.

- (a) **The Administration determines that—**
  - (1) There is no feasible and prudent avoidance alternative, as defined in [§ 774.17](/cfr/23/774.17.md), to the use of land from the property; and
  - (2) The action includes all possible planning, as defined in [§ 774.17](/cfr/23/774.17.md), to minimize harm to the property resulting from such use; or
- (b) The Administration determines that the use of the property, including any measure(s) to minimize harm (such as any avoidance, minimization, mitigation, or enhancement measures) committed to by the applicant, will have a de minimis impact, as defined in [§ 774.17](/cfr/23/774.17.md), on the property.
- (c) If the analysis in [paragraph (a)(1)](#a-1) of this section concludes that there is no feasible and prudent avoidance alternative, then the Administration may approve, from among the remaining alternatives that use [Section 4(f)](/cfr/23/4.md?p=f) property, only the alternative that:
  - (1) **Causes the least overall harm in light of the statute's preservation purpose.** The least overall harm is determined by balancing the following factors:
    - (i) The ability to mitigate adverse impacts to each [Section 4(f)](/cfr/23/4.md?p=f) property (including any measures that result in benefits to the property);
    - (ii) The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each [Section 4(f)](/cfr/23/4.md?p=f) property for protection;
    - (iii) The relative significance of each [Section 4(f)](/cfr/23/4.md?p=f) property;
    - (iv) The views of the official(s) with jurisdiction over each [Section 4(f)](/cfr/23/4.md?p=f) property;
    - (v) The degree to which each alternative meets the purpose and need for the project;
    - (vi) After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by [Section 4(f)](/cfr/23/4.md?p=f); and
    - (vii) **Substantial differences in costs among the alternatives.**
  - (2) The alternative selected must include all possible planning, as defined in [§ 774.17](/cfr/23/774.17.md), to minimize harm to [Section 4(f)](/cfr/23/4.md?p=f) property.
- (d) Programmatic [Section 4(f)](/cfr/23/4.md?p=f) evaluations are a time-saving procedural alternative to preparing individual [Section 4(f)](/cfr/23/4.md?p=f) evaluations under [paragraph (a)](#a) of this section for certain minor uses of [Section 4(f)](/cfr/23/4.md?p=f) property. Programmatic [Section 4(f)](/cfr/23/4.md?p=f) evaluations are developed by the Administration based on experience with a specific set of conditions that includes project type, degree of use and impact, and evaluation of avoidance alternatives. 1 An approved programmatic [Section 4(f)](/cfr/23/4.md?p=f) evaluation may be relied upon to cover a particular project only if the specific conditions in the programmatic evaluation are met
  - (1) The determination whether a programmatic [Section 4(f)](/cfr/23/4.md?p=f) evaluation applies to the use of a specific [Section 4(f)](/cfr/23/4.md?p=f) property shall be documented as specified in the applicable programmatic [Section 4(f)](/cfr/23/4.md?p=f) evaluation.
  - (2) The Administration may develop additional programmatic [Section 4(f)](/cfr/23/4.md?p=f) evaluations. Proposed new or revised programmatic [Section 4(f)](/cfr/23/4.md?p=f) evaluations will be coordinated with the Department of Interior, Department of Agriculture, and Department of Housing and Urban Development, and published in the Federal Register for comment prior to being finalized. New or revised programmatic [Section 4(f)](/cfr/23/4.md?p=f) evaluations shall be reviewed for legal sufficiency and approved by the Headquarters Office of the Administration.
- (e) The coordination requirements in [§ 774.5](/cfr/23/774.5.md) must be completed before the Administration may make [Section 4(f)](/cfr/23/4.md?p=f) approvals under this section. Requirements for the documentation and timing of [Section 4(f)](/cfr/23/4.md?p=f) approvals are located in §§ [774.7](/cfr/23/774.7.md) and [774.9](/cfr/23/774.9.md), respectively.

## Notes

### Amendments

[73 FR 13395, Mar. 12, 2008, as amended at 73 FR 31610, June 3, 2008; 83 FR 54506, Oct. 29, 2018]

### Authority

Authority: 23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and 204(h)(2); 49 U.S.C. 303; Section 6009 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144); 49 CFR 1.81 and 1.91; and, Pub. L. 114-94, 129 Stat. 1312, Sections 1303 and 11502.

### Source

Source: 73 FR 13395, Mar. 12, 2008, unless otherwise noted.

### Amendments

[73 FR 13395, Mar. 12, 2008, as amended at 73 FR 31610, June 3, 2008; 83 FR 54506, Oct. 29, 2018]