Safeguarding section 4(f) still necessary: park and recreation legislation protecting park space enters final steps in process.

By all appearances, the multi-year reauthorization of the nation's surface transportation program is approaching a critical final phase. The previous six-year bill, the Transportation Equity Act for the 21st Century expired Sept. 30, 2003, and has been extended three times since then in hopes of crafting a final bill to reauthorize the act. While there is earnest bi-partisan support for passage of a new bill, serious issues still divide Congress and the administration.

To briefly recap, since 1991, two six-year authorizations of the transportation bill have been passed, the Intermodal Surface Transportation Act (ISTEA), and the Transportation Equity Act for the 21st Century (TEA21). The transportation trust fund, which provides funds for the programs listed in the act, is funded by an 18.4-cent federal fuel excise tax. Off-road vehicle and boat fuel taxes also go into these trust funds. The proceeds of the fuel tax are huge, generating more than $250 billion per year, and the federal transportation programs are of great interest to the states that benefit from the proportional distribution of the federal funds.

The Transportation Equity Act is also of great interest to parks and recreation. The act includes the Transportation Enhancements program, a far-reaching program that funds 12 categories of projects in communities including bike/pedestrian and rail/ trail projects; the Recreational Trail Program that finds hiking, biking and off-road vehicle trails in all 50 states; the Aquatic Resources Trust Fund that finds boating safety and fishing education programs in all the states; and many other sources of funds for community transportation-related improvements. In addition, the new bill has a number of provisions that NRPA strongly supports including the Safe Routes to School proposal, the stormwater mitigation provisions as offered by Sen. John Warner (R-VA), and the new Transit in Parks initiative.

However, resolution of a number of serious issues has prevented the leadership of the House and the Senate from agreeing with the president on the basic framework for a bill. Among the most difficult issues have been agreement on the total cost era six-year bill, and the 'donor-donee' state issues--namely the funding formula fur how much the 26 states receive that pay more in fuel tax than they receive in payments.

A logjam was broken in early June when the democratic and republican leadership of the House and Senate agreed on the naming of a conference committee to proceed on reconciling their respective versions of the bill. Twenty-one Senate conferees have been named to the conference committee, 11 republicans, nine democrats and one independent. All will vote on conference items, but the expectation is that all major issues will require the explicit concurrence of the so-called 'big four,' namely senators Harry Reid (D-Nev), Christopher S. Bond (R-Mo.), James M. Inhofe (R-Okla.) and Warner.

In a positive development, the House approved a motion by Rep. James L. Oberstar (D-Minn.) to instruct the conferees to insist on House language on Safe Routes to Schools by a vote of 377-30.

One of the most important issues for parks and recreation has been what happens to Section 4(f), the landmark protections for parks and recreation areas, as well as historic sites, wildlife areas and waterfowl refuges, when they are affected by transportation projects or highway construction.

For the last 40 years, they have been secure and protected by law. In fact, the law was validated by the Supreme Court in 1971 and the standard for highway departments has been to find a "feasible and prudent alternative" to damaging the protected resource since that Supreme Court ruling.

"The administration has declared that changes to Section 4,(f) are one of its top priorities in any new reauthorization. The Senate-passed version of the bill, S. 1072, contains language that would significantly alter the hardfought, hard-won protections for parks in Section 4(f).

The Senate version also contains language that would create a new 'de minimis' exemption for the protected classes. This amendment was inserted to address legitimate concerns over project delays sometimes caused by historic site protection needs. While the new language may properly address and account for historic site protection in the section 4(f) process, it could not ensure protection of the other protected resources. A coalition of many national and regional groups has urged Congress not to forsake the critical protections afforded to parks, wildlife arm waterfowl areas in Section 4(f). Here are excerpts of a letter sent from the non-profit Federal Working Group of the Surface Transportation Policy Project to the leadership of Congress and the conference committee conferees:

"As a unified coalition of national and state organizations representing a diverse cross section of public interests, we request that you give the highest consideration to retaining the current law for Section 4(f) with respect to park and recreation areas, wildlife areas, and waterfowl refuges as you work in conference committee to reconcile the bills to reauthorize the Transportation Equity Act.

We offer the following comments and recommendations on proposed changes to Section 4(f).

* We oppose the creation of a "de minimis" standard for other protected resources, namely, park and recreation areas, wildlife refuges, waterfowl areas.

* We oppose creation of new rulemaking authority for these protected resources. Current law is proven, time-tested, accepted and Supreme Court-validated. In the proposed Senate legislation, the term "de minimis" is substituted for the existing "prudent and feasible" standard as to how this term is to be defined and applied by the Secretary of Transportation. A new rulemaking risks leaving too much to the discretion of the Secretary of Transportation and is likely to spur years of delays and litigation associated with the rulemaking process.

* Aside from anecdotal evidence presented regarding the need for changes to the manner in which the defined classes of resources are protected from damage, there is no objective proof that existing 4(f) protections for parks, wildlife and waterfowl areas under the "prudent and feasible" standard need to be replaced with an as yet undefined "de minimis" standard.

* Current language in the Senate version of the bill, S. 107g, would create unenforceable standards for mitigation projects, limit public participation, and put local park and recreation officials in the unreasonable position of opposing high-profile and politically charged transportation projects to protect public land or natural resources. Such changes are not necessary and they would not improve current law, which properly protects the resources while allowing construction to proceed in a timely manner without increased expense.

* The House version of the bill, HR 3550, protects the integrity of Section 4(f) with respect to parks, wildlife and waterfowl resources. The Senate version may deal fairly with adjustments to the Section 4(f) standard for historic resources, but it unacceptably leaves parks, wildlife refuges, and waterfowl areas largely unprotected.

In short, we respectfully request that the final conference bill include the House approach to protecting these natural resources and public lands."

As of this writing, the progress of the reauthorization was uncertain, but NRPA members and advocates should follow updates on the NRPA Web page, www.nrpa.org, and through the RecreAction Network, and offer unqualified support for the positions expressed in the national coalition letter.

For more information and breaking news updates, contact Rich Dolesh of the NRPA Public Policy office in Washington, D.C., at [e-mail] or [phone].