49 U.S.C. § 303 — Policy on lands, wildlife and waterfowl ref-

Page 101 TITLE 49—TRANSPORTATION § 303 1 See References in Text note below. 2 So in original. The words ‘‘, United States Code’’ probably should not appear. In subsection (c), the words ‘‘In exercising the func- tions, powers, and duties conferred on and transferred to the Secretary by this chapter’’ before ‘‘Secretary’’ are omitted as surplus. The word ‘‘consider’’ is sub- stituted for ‘‘give full consideration to’’ to eliminate surplus words. The words ‘‘for operational continuity of the functions transferred’’ after ‘‘the needs’’ are omit- ted as executed. Editorial Notes AMENDMENTS 1995—Subsec. (a). Pub. L. 104–88 substituted ‘‘13101’’ for ‘‘10101a’’. 1994—Subsec. (b). Pub. L. 103–272 substituted ‘‘This subtitle and chapters 221 and 315 of this title’’ for ‘‘Sub- title I and chapter 31 of subtitle II of this title and the Department of Transportation Act (49 App. U.S.C. 1651 et seq.)’’. 1991—Subsec. (d). Pub. L. 102–240, § 1036(a), added sub- sec. (d). Subsec. (e). Pub. L. 102–240, § 5001, added subsec. (e). 1984—Subsec. (b). Pub. L. 98–216 substituted ‘‘49 App. U.S.C.’’ for ‘‘49 U.S.C.’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104–88 effective Jan. 1, 1996, see section 2 of Pub. L. 104–88, set out as an Effective Date note under section 1301 of this title. EFFECTIVE DATE OF 1991 AMENDMENT Amendment by section 1036(a) of Pub. L. 102–240 effec- tive Dec. 18, 1991, and applicable to funds authorized to be appropriated or made available after Sept. 30, 1991, and, with certain exceptions, not applicable to funds appropriated or made available on or before Sept. 30, 1991, see section 1100 of Pub. L. 102–240, set out as a note under section 104 of Title 23, Highways. § 303. Policy on lands, wildlife and waterfowl ref- uges, and historic sites (a) It is the policy of the United States Gov- ernment that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. (b) The Secretary of Transportation shall co- operate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States, in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of lands crossed by transportation activi- ties or facilities. (c) APPROVAL OF PROGRAMS AND PROJECTS.— Subject to subsections (d) and (h), the Secretary may approve a transportation program or project (other than any project for a park road or parkway under section 204 1 of title 23) requir- ing the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if— (1) there is no prudent and feasible alter- native to using that land; and (2) the program or project includes all pos- sible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use. (d) DE MINIMIS IMPACTS.— (1) REQUIREMENTS.— (A) REQUIREMENTS FOR HISTORIC SITES.— The requirements of this section shall be considered to be satisfied with respect to an area described in paragraph (2) if the Sec- retary determines, in accordance with this subsection, that a transportation program or project will have a de minimis impact on the area. (B) REQUIREMENTS FOR PARKS, RECREATION AREAS, AND WILDLIFE OR WATERFOWL REF- UGES.—The requirements of subsection (c)(1) shall be considered to be satisfied with re- spect to an area described in paragraph (3) if the Secretary determines, in accordance with this subsection, that a transportation program or project will have a de minimis impact on the area. The requirements of subsection (c)(2) with respect to an area de- scribed in paragraph (3) shall not include an alternatives analysis. (C) CRITERIA.—In making any determina- tion under this subsection, the Secretary shall consider to be part of a transportation program or project any avoidance, mini- mization, mitigation, or enhancement meas- ures that are required to be implemented as a condition of approval of the transportation program or project. (2) HISTORIC SITES.—With respect to historic sites, the Secretary may make a finding of de minimis impact only if— (A) the Secretary has determined, in ac- cordance with the consultation process re- quired under section 306108 of title 54, United States Code,2 that— (i) the transportation program or project will have no adverse effect on the historic site; or (ii) there will be no historic properties affected by the transportation program or project; (B) the finding of the Secretary has re- ceived written concurrence from the applica- ble State historic preservation officer or tribal historic preservation officer (and from the Advisory Council on Historic Preserva- tion if the Council is participating in the consultation process); and (C) the finding of the Secretary has been developed in consultation with parties con- sulting as part of the process referred to in subparagraph (A). (3) PARKS, RECREATION AREAS, AND WILDLIFE OR WATERFOWL REFUGES.—With respect to parks, recreation areas, or wildlife or water- fowl refuges, the Secretary may make a find- ing of de minimis impact only if— (A) the Secretary has determined, after public notice and opportunity for public re- view and comment, that the transportation program or project will not adversely affect the activities, features, and attributes of the Page 102 TITLE 49—TRANSPORTATION § 303 park, recreation area, or wildlife or water- fowl refuge eligible for protection under this section; and (B) the finding of the Secretary has re- ceived concurrence from the officials with jurisdiction over the park, recreation area, or wildlife or waterfowl refuge. (e) SATISFACTION OF REQUIREMENTS FOR CER- TAIN HISTORIC SITES.— (1) IN GENERAL.—The Secretary shall— (A) align, to the maximum extent prac- ticable, the requirements of this section with the requirements of the National Envi- ronmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and section 306108 of title 54, includ- ing implementing regulations; and (B) not later than 90 days after the date of enactment of this subsection, coordinate with the Secretary of the Interior and the Executive Director of the Advisory Council on Historic Preservation (referred to in this subsection as the ‘‘Council’’) to establish procedures to satisfy the requirements de- scribed in subparagraph (A) (including regu- lations). (2) AVOIDANCE ALTERNATIVE ANALYSIS.— (A) IN GENERAL.—If, in an analysis re- quired under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Secretary determines that there is no fea- sible or prudent alternative to avoid use of a historic site, the Secretary may— (i) include the determination of the Sec- retary in the analysis required under that Act; (ii) provide a notice of the determination to— (I) each applicable State historic pres- ervation officer and tribal historic pres- ervation officer; (II) the Council, if the Council is par- ticipating in the consultation process under section 306108 of title 54; and (III) the Secretary of the Interior; and (iii) request from the applicable preser- vation officer, the Council, and the Sec- retary of the Interior a concurrence that the determination is sufficient to satisfy subsection (c)(1). (B) CONCURRENCE.—If the applicable pres- ervation officer, the Council, and the Sec- retary of the Interior each provide a concur- rence requested under subparagraph (A)(iii), no further analysis under subsection (c)(1) shall be required. (C) PUBLICATION.—A notice of a determina- tion, together with each relevant concur- rence to that determination, under subpara- graph (A) shall— (i) be included in the record of decision or finding of no significant impact of the Secretary; and (ii) be posted on an appropriate Federal website by not later than 3 days after the date of receipt by the Secretary of all con- currences requested under subparagraph (A)(iii). (3) ALIGNING HISTORICAL REVIEWS.— (A) IN GENERAL.—If the Secretary, the ap- plicable preservation officer, the Council, and the Secretary of the Interior concur that no feasible and prudent alternative ex- ists as described in paragraph (2), the Sec- retary may provide to the applicable preser- vation officer, the Council, and the Sec- retary of the Interior notice of the intent of the Secretary to satisfy subsection (c)(2) through the consultation requirements of section 306108 of title 54. (B) SATISFACTION OF CONDITIONS.—To sat- isfy subsection (c)(2), the applicable preser- vation officer, the Council, and the Sec- retary of the Interior shall concur in the treatment of the applicable historic site de- scribed in the memorandum of agreement or programmatic agreement developed under section 306108 of title 54. (f) REFERENCES TO PAST TRANSPORTATION EN- VIRONMENTAL AUTHORITIES.— (1) SECTION 4(F) REQUIREMENTS.—The require- ments of this section are commonly referred to as section 4(f) requirements (see section 4(f) of the Department of Transportation Act (Public Law 89–670; 80 Stat. 934) as in effect be- fore the repeal of that section). (2) SECTION 106 REQUIREMENTS.—The require- ments of section 306108 of title 54 are com- monly referred to as section 106 requirements (see section 106 of the National Historic Pres- ervation Act of 1966 (Public Law 89–665; 80 Stat. 917) as in effect before the repeal of that section). (g) BRIDGE EXEMPTION FROM CONSIDERATION.— A common post-1945 concrete or steel bridge or culvert (as described in 77 Fed. Reg. 68790) that is exempt from individual review under section 306108 of title 54 shall be exempt from consider- ation under this section. (h) RAIL AND TRANSIT.— (1) IN GENERAL.—Improvements to, or the maintenance, rehabilitation, or operation of, railroad or rail transit lines or elements there- of that are in use or were historically used for the transportation of goods or passengers shall not be considered a use of a historic site under subsection (c), regardless of whether the rail- road or rail transit line or element thereof is listed on, or eligible for listing on, the Na- tional Register of Historic Places. (2) EXCEPTIONS.— (A) IN GENERAL.—Paragraph (1) shall not apply to— (i) stations; or (ii) bridges or tunnels located on— (I) railroad lines that have been aban- doned; or (II) transit lines that are not in use. (B) CLARIFICATION WITH RESPECT TO CER- TAIN BRIDGES AND TUNNELS.—The bridges and tunnels referred to in subparagraph (A)(ii) do not include bridges or tunnels located on railroad or transit lines— (i) over which service has been discon- tinued; or (ii) that have been railbanked or other- wise reserved for the transportation of goods or passengers. (Pub. L. 97–449, § 1(b), Jan. 12, 1983, 96 Stat. 2419; Pub. L. 100–17, title I, § 133(d), Apr. 2, 1987, 101 Page 103 TITLE 49—TRANSPORTATION § 303a Stat. 173; Pub. L. 109–59, title VI, § 6009(a)(2), Aug. 10, 2005, 119 Stat. 1875; Pub. L. 113–287, § 5(p), Dec. 19, 2014, 128 Stat. 3272; Pub. L. 114–94, div. A, title I, §§ 1301(b), 1302(b), 1303(b), title XI, § 11502(b), Dec. 4, 2015, 129 Stat. 1376, 1378, 1690.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 303(a) ......... 49:1651(b)(2). Oct. 15, 1966, Pub. L. 89–670, § 2(b)(2), 80 Stat. 931. 49:1653(f) (1st sen- tence). Oct. 15, 1966, Pub. L. 89–670, § 4(f), 80 Stat. 934; restated Aug. 23, 1968, Pub. L. 90–495, § 18(b), 82 Stat. 824. 303(b) ......... 49:1653(f) (2d sen- tence). 303(c) ......... 49:1653(f) (less 1st, 2d sentences). In subsection (a), the words ‘‘hereby declared to be’’ before ‘‘the policy’’ are omitted as surplus. The words ‘‘of the United States Government’’ are substituted for ‘‘national’’ for clarity and consistency. In subsection (b), the words ‘‘crossed by transpor- tation activities or facilities’’ are substituted for ‘‘tra- versed’’ for clarity. In subsection (c), before clause (1), the words ‘‘After August 23, 1968’’ after ‘‘Secretary’’ are omitted as exe- cuted. The word ‘‘transportation’’ is inserted before ‘‘program’’ for clarity. In clause (2), the words ‘‘or project’’ are added for consistency. Editorial Notes REFERENCES IN TEXT Section 204 of title 23, referred to in subsec. (c), was repealed and a new section 204 enacted by Pub. L. 112–141, div. A, title I, § 1119(a), July 6, 2012, 126 Stat. 473, 489. The National Environmental Policy Act of 1969, re- ferred to in subsec. (e)(1)(A), (2)(A), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. The date of enactment of this subsection, referred to in subsec. (e)(1)(B), is the date of enactment of Pub. L. 114–94, which was approved Dec. 4, 2015. AMENDMENTS 2015—Subsec. (c). Pub. L. 114–94, § 11502(b)(1), sub- stituted ‘‘subsections (d) and (h)’’ for ‘‘subsection (d)’’. Subsec. (e). Pub. L. 114–94, § 1301(b), added subsec. (e). Subsec. (f). Pub. L. 114–94, § 1302(b), added subsec. (f). Subsec. (g). Pub. L. 114–94, § 1303(b), added subsec. (g). Subsec. (h). Pub. L. 114–94, § 11502(b)(2), added subsec. (h). 2014—Subsec. (d)(2)(A). Pub. L. 113–287 substituted ‘‘section 306108 of title 54, United States Code’’ for ‘‘sec- tion 106 of the National Historic Preservation Act (16 U.S.C. 470f)’’ in introductory provisions. 2005—Subsec. (c). Pub. L. 109–59, § 6009(a)(2)(A), in- serted heading and substituted ‘‘Subject to subsection (d), the Secretary’’ for ‘‘The Secretary’’ in introductory provisions. Subsec. (d). Pub. L. 109–59, § 6009(a)(2)(B), added sub- sec. (d). 1987—Subsec. (c). Pub. L. 100–17 inserted ‘‘(other than any project for a park road or parkway under section 204 of title 23)’’ after ‘‘program or project’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees. TREATMENT OF MILITARY FLIGHT OPERATIONS Pub. L. 105–85, div. A, title X, § 1079, Nov. 18, 1997, 111 Stat. 1916, provided that: ‘‘No military flight operation (including a military training flight), or designation of airspace for such an operation, may be treated as a transportation program or project for purposes of sec- tion 303(c) of title 49, United States Code.’’ § 303a. Development of water transportation (a) POLICY.—It is the policy of Congress— (1) to promote, encourage, and develop water transportation, service, and facilities for the commerce of the United States; and (2) to foster and preserve rail and water transportation. (b) DEFINITION.—In this section, ‘‘inland water- way’’ includes the Great Lakes. (c) REQUIREMENTS.—The Secretary of Trans- portation shall— (1) investigate the types of vessels suitable for different classes of inland waterways to promote, encourage, and develop inland water- way transportation facilities for the com- merce of the United States; (2) investigate water terminals, both for in- land waterway traffic and for through traffic by water and rail, including the necessary docks, warehouses, and equipment, and inves- tigate railroad spurs and switches connecting with those water terminals, to develop the types most appropriate for different locations and for transferring passengers or property be- tween water carriers and rail carriers more ex- peditiously and economically; (3) consult with communities, cities, and towns about the location of water terminals, and cooperate with them in preparing plans for terminal facilities; (4) investigate the existing status of water transportation on the different inland water- ways of the United States to learn the extent to which— (A) the waterways are being used to their capacity and are meeting the demands of traffic; and (B) water carriers using those waterways are interchanging traffic with rail carriers; (5) investigate other matters that may pro- mote and encourage inland water transpor- tation; and (6) compile, publish, and distribute informa- tion about transportation on inland water- ways that the Secretary considers useful to the commercial interests of the United States. (Pub. L. 103–272, § 4(j)(6)(A), July 5, 1994, 108 Stat. 1366.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 303a ........... 49 App.:142. Feb. 28, 1920, ch. 91, § 500, 41 Stat. 499; Aug. 6, 1981, Pub. L. 97–31, § 12(9), 95 Stat. 154. Section 4(j)(6)(A) amends 49:ch. 3 by restating 49 App.:142 as section 303a because the provision more ap- propriately belongs in chapter 3. In subsection (a)(2), the words ‘‘in full vigor both’’ are omitted as surplus. In subsection (b), the words ‘‘be construed to’’ are omitted as surplus.