In defense of parks: a call to fight against minor impact transportation projects.

John Muir and Beatrice Ward Nelson, early advocates for establishing national and state parks, and Anona Stoner, a founder of Citizens to Preserve Overton Park in Memphis, Tenn., all had something in common: they brought a fiery passion to the creation of public parks.

Today's activists--"friends of" groups, citizen and corporate advocates, and public executives--are the contemporary equivalents of Muir, Nelson and Stoner. They understand that stewardship of public recreation places and the quest for sufficient appropriations toward them is a continuing battle. Every public place reserved for ecological or aesthetic values, active recreation, or 100 other forms of recreation, is the result of dedicated people committed to the cause.

Then there are the external factors that can bring increased support and add value to public recreation places and services, or that threaten the very qualities of public spaces and personal recreation experiences.

The current and likely continuing threat arises from state transportation officials and a handful of legislators who claim that unwarranted delays in highway construction are the result of the demands made by legislation. Section 4(f) of the 1966 U.S. Department of Transportation Act was not principally about building better roads. Rather, it was about keeping roads out of a protected class of resources.

"The costs in time and money (of reviews) never bring added value to a transportation project," an Ohio transportation official told NRPA recently. That mayor may not be accurate, but it clearly misses the point altogether.

The present debate centers on a process to exempt so-called "de minimis" of minor impact transportation projects from the rigors of law. This measure was already adopted by the Senate on February 12 as part of a larger package of "manager's amendments." The House Transportation and Infrastructure Committee was expected to begin action on its version of the bill, H.R.3550, perhaps by early March, but this was still uncertain because the House passed the second extension of the Transportation Equity Act for the 21st Century (TEA21) on February 11.

NRPA has argued that nothing is wrong with the current statutory language, and public park officials must continue to have full access to the protection it affords. Courts have repeatedly found that meeting the test of "no feasible and prudent alternatives" before the taking of protected properties is fully workable. It is well understood by public policy makers, transportation planners, civic leaders and resource managers. In fact, the very existence of this provision has likely been an effective deterrent to encroachment, and a stimulus to appropriate transportation planning, development of livable communities and resource conservation.

The administration, it seems, is also anxious to back off the admittedly hard-nosed 1966 statute and the 1971 U.S. Supreme Court decision in Friends of Overton Park v. Volpe to make encroachment of public park land very difficult.

"The administration ... believes that the (surface transportation) bill should clarify standards pertaining to public park and recreation lands, wildlife and waterfowl refuges, and historic sites--commonly referred to as Section 4(f)," it observed in a statement during Senate consideration of S. 1072. "A clarification of the Section 4(f) definition of 'prudent' is needed to forestall confusing standards applied unevenly by the Federal Court of Appeals."

This is simply ridiculous.

Since the Supreme Court's 1971 decision, the Federal Highway Administration has published considerable guidance for state planners and others that define what this and other environmental laws do not require.

The impact of legislative change is potentially enormous. The Land and Water Conservation Fund (LWCF), for example, provides all important level of protection to park land and recreation developments, but only for local or state projects that have actually received LWCF assistance. This leaves thousands of public recreation resources with what could be, given state and local political and economic interests, a very thin layer of protection. The proposed amendment to Section 4(f) effectively adopts the position rejected by the Supreme Court in Overton Park. In determining whether there is no other prudent route, the secretary would now be required to "weigh the determent resulting from the destruction of park land against the cost of other factors, and determine on the basis of the importance he attaches to these other factors, whether, on balance, alternative feasible routes would be 'prudent.'"

What the administration describes as modernizing would in fact, cripple the act. The incorporation of "relative significance" of a park versus a road, for example, introduces a highly judgmental element that would certainly be subject to legal reinterpretation over time. Who today can judge the value of even a small community park in the context of future social or environmental conditions, needs and values?

There is also an unknown but potentially mixed blessing in the amendment that observes that "the views of the official or officials with jurisdiction over the land" must sign off on a de minimis impact. NRPA has forcefully argued in support of local and state decision-making in the selection of LWCF grantees.

NRPA must support appropriate ways to apply rational decision-making and "common sense" to both planning and construction of transportation projects where public park lands may be involved. But reducing the statutory protection of Section 4(f) is not an acceptable way to reach this goal. It is time to review the Supreme Court's 1971 decision, and prepare to fight again for America's parks.

I encourage you to stay abreast of current developments on the federal level by visiting our Web site at www.nrpa.org. At the same time, watch your local media for anything that affects parks and recreation in your state and community. Then, it's crucial that you make your position known to your elected officials on all levels of government, and do it often. It's our responsibility to protect and defend our nation's parks--our children and grandchildren will thank us for it.

David Lose, FASLA 

Chairman of the Board