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  • Disclaimer: Any opinions, findings, and recommendations expressed in the group area discussions are solely those of the authors and do not necessarily reflect the views of the United States Government, the Department of Transportation, or the Federal Highway Administration.
Edited: 4/24/2012 8:41 AM

Traials within State DOT ROW?

The trail system is within State DOT ROW (interstate). Some crossings are permitted by the State DOT (encroachment permit) and some crossings are not permitted. There are also additional crossing in the planning stage that are identified in the City's Trail Management Plan. The trail system is under management of the City. Are any of the exisiting or planned crossings within the State DOT ROW Section 4(f)resources?
2011-06-13 20:47:44
Posted: 4/24/2012 8:41 AM
These issues sort of came-up in the discussions above, but I wanted to place a particular stress on them.  (1)Is/are the trail(s) in question designated in specific locations within the right of way (because there are some that are permited, I am presuming that those have specific locations)?  (2) For the ones that have permits for use, does the permit clearly identify the recreational use as secondary to the transportation use? and (3) Can you assure that there will be no activity associated with the proposed project(s) which prevent the recreational use of the broader trails on either a temporary or permanent basis?
6/20/2011 1:13 PM
Posted: 4/24/2012 8:41 AM
F. Yates Oppermann
In general the answer is yes, 4(f) likely applies, well maybe.  Unless you can somehow make the argument that these are transportation trails, not recreational trails.  Those crossing points that are not managed or approved by a government entity may not qualify since they don't really have an OWJ (I've never made this argument, but might be wort talking about with your division).  For everything else, the question is how do you manage the process.

If a trail is wholely within the ROW, then the exemption identified by one of the other posters may work for you, but what we generally run into is that it's not the use of the section in the ROW that is the issue, but the "use" to the larger trail network which makes the exemption non-applicable.  If you can do a detour, then the exemption for temporary occupancy may be a viable option.  We've also starting using the net benefits programmatic for this sort of issue where we cannot provide a safe detour.  Contact me separately if you want to know more.

If those two fail, then you might be able to use de minimis, but it's actually a bad fit or these sorts of situations.
6/20/2011 10:51 AM
Posted: 4/24/2012 8:41 AM
Dave Gamble
The joint planning provision in 23 CFR 774.11(i) is usually intended for use when a future transportation corridor and recreational property are being jointly planned and developed, not necessarily when there is an existing transportation corridor with subsequent planning for a future trail or extended trail.  Still, it would be wise to incorporate language in any occupancy permits for the future or extended trails that makes it clear the corridor's primary function is for transportation and that the trails may have to be relocated if and when work is necessary to rehabilitate or expand the transportation facility.
6/16/2011 10:57 AM
Posted: 4/24/2012 8:41 AM
Always talk to your local FHWA office for a definitive answer, but here are some things to get you started:

For the existing crossings, they probably qualify for the exception at 23 CFR 774.13(f)(3) "Trails, paths, bikeways, and sidewalks that occupy a transportation facility right-of-way without limitation to any specific location within that right-of-way, so long as the continuity of the trail, path, bikeway, or sidewalk is maintained" - my interpretation is that the "without limitation to any specific location" is that the trail doesn't have to be in a specific location in order to retain its recrational attributes, not that it would be allowed to be absolutely anywhere in the right-of-way (e.g. restrictions for roadway purposes are ok, restrictions for recreation purposes are not ok).

For proposed crossings - the best thing to do is joint planning and development as described in 23 CFR 774.11(i)
6/14/2011 4:40 PM