When a public park, recreation area, or wildlife and waterfowl refuge is established and an area within the 4(f) resource is reserved for highway use prior to, or at the same time the 4(f) resource was established, do the requirements of Section 4(f) apply?
No, the requirements of Section 4(f) do not apply to the subsequent use of the reserved area for its intended highway purpose. This is because the land used for the highway project was reserved from and, therefore, has never been part of the protected 4(f) area. Nor is there a constructive use (23 C.F.R. 771.135(p)(5)(v)) of the 4(f) resource, since it was jointly planned with the highway project. The specific governmental action that must be taken to reserve a highway corridor from the 4(f) resource is a question of state law and local law, but evidence that the reservation was contemporaneous with or prior to the establishment of the 4(f) resource is always required. Subsequent statements of intent to construct a highway project within the 4(f) resource are not sufficient. All measures which have been taken to jointly develop the highway and the park should be completely documented in the project records. To provide flexibility for the future highway project, state and local transpor
