---
kind: "section"
citation: "23 C.F.R. § 774.9"
title: "23"
number: "774.9"
heading: "Timing."
url: "https://uscodex.org/cfr/23/774.9"
---

# §774.9. Timing.

- (a) The potential use of land from a [Section 4(f)](/cfr/23/4.md?p=f) property shall be evaluated as early as practicable in the development of the action when alternatives to the proposed action are under study.
- (b) Except as provided in [paragraph (c)](#c) of this section, for actions processed with EISs the Administration will make the [Section 4(f)](/cfr/23/4.md?p=f) approval either in the final EIS or in the ROD. Where the [Section 4(f)](/cfr/23/4.md?p=f) approval is documented in the final EIS, the Administration will summarize the basis for its [Section 4(f)](/cfr/23/4.md?p=f) approval in the ROD. Actions requiring the use of [Section 4(f)](/cfr/23/4.md?p=f) property, and proposed to be processed with a FONSI or classified as a CE, shall not proceed until notification by the Administration of [Section 4(f)](/cfr/23/4.md?p=f) approval.
- (c) After the CE, FONSI, or ROD has been processed, a separate [Section 4(f)](/cfr/23/4.md?p=f) approval will be required, except as provided in [§ 774.13](/cfr/23/774.13.md), if:
  - (1) A proposed modification of the alignment or design would require the use of [Section 4(f)](/cfr/23/4.md?p=f) property; or
  - (2) The Administration determines that [Section 4(f)](/cfr/23/4.md?p=f) applies to the use of a property; or
  - (3) A proposed modification of the alignment, design, or measures to minimize harm (after the original [Section 4(f)](/cfr/23/4.md?p=f) approval) would result in a substantial increase in the amount of [Section 4(f)](/cfr/23/4.md?p=f) property used, a substantial increase in the adverse impacts to [Section 4(f)](/cfr/23/4.md?p=f) property, or a substantial reduction in the measures to minimize harm.
- (d) A separate [Section 4(f)](/cfr/23/4.md?p=f) approval required under [paragraph (c)](#c) of this section will not necessarily require the preparation of a new or supplemental NEPA document. If a new or supplemental NEPA document is also required under [§ 771.130](/cfr/23/771.130.md) of this chapter, then it should include the documentation supporting the separate [Section 4(f)](/cfr/23/4.md?p=f) approval. Where a separate [Section 4(f)](/cfr/23/4.md?p=f) approval is required, any activity not directly affected by the separate [Section 4(f)](/cfr/23/4.md?p=f) approval can proceed during the analysis, consistent with [§ 771.130(f)](/cfr/23/771.130.md?p=f) of this chapter.
- (e) [Section 4(f)](/cfr/23/4.md?p=f) may apply to archeological sites discovered during construction, as set forth in [§ 774.11(f)](/cfr/23/774.11.md?p=f). In such cases, the [Section 4(f)](/cfr/23/4.md?p=f) process will be expedited and any required evaluation of feasible and prudent avoidance alternatives will take account of the level of investment already made. The review process, including the consultation with other agencies, will be shortened as appropriate.

## Notes

### 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.