23 U.S.C. § 138 — Preservation of parklands

Page 203 TITLE 23—HIGHWAYS § 138 of Pub. L. 112–141, set out as Effective and Termi- nation Dates of 2012 Amendment notes under section 101 of this title], the Secretary [of Transportation], in consultation with relevant State motor carrier safety personnel, shall conduct a survey of each State— ‘‘(A) to evaluate the capability of the State to provide adequate parking and rest facilities for commercial motor vehicles engaged in interstate transportation; ‘‘(B) to assess the volume of commercial motor vehicle traffic in the State; and ‘‘(C) to develop a system of metrics to measure the adequacy of commercial motor vehicle parking facilities in the State. ‘‘(2) RESULTS.—The results of the survey under paragraph (1) shall be made available to the public on the website of the Department of Transportation. ‘‘(3) PERIODIC UPDATES.—The Secretary shall peri- odically update the survey under this subsection. ‘‘(d) ELECTRIC VEHICLE AND NATURAL GAS VEHICLE IN- FRASTRUCTURE.— ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), a State may establish electric vehicle charging stations or natural gas vehicle refueling stations for the use of battery-powered or natural gas-fueled trucks or other motor vehicles at any parking facil- ity funded or authorized under this Act [see Tables for classification] or title 23, United States Code. ‘‘(2) EXCEPTION.—Electric vehicle battery charging stations or natural gas vehicle refueling stations may not be established or supported under paragraph (1) if commercial establishments serving motor vehicle users are prohibited by section 111 of title 23, United States Code. ‘‘(3) FUNDS.—Charging or refueling stations de- scribed in paragraph (1) shall be eligible for the same funds as are available for the parking facilities in which the stations are located. ‘‘(e) TREATMENT OF PROJECTS.—Notwithstanding any other provision of law, projects funded through the au- thority provided under this section shall be treated as projects on a Federal-aid highway under chapter 1 of title 23, United States Code.’’ TRUCK PARKING FACILITIES Pub. L. 109–59, title I, § 1305, Aug. 10, 2005, 119 Stat. 1214, which related to truck parking facilities, was re- pealed by Pub. L. 112–141, div. A, title I, § 1519(b)(2), July 6, 2012, 126 Stat. 575. § 138. Preservation of parklands (a) DECLARATION OF POLICY.— (1) IN GENERAL.—It is the national policy that special effort should be made to preserve the natural beauty of the countryside and pub- lic park and recreation lands, wildlife and wa- terfowl refuges, and historic sites. (2) COOPERATION AND CONSULTATION.— (A) IN GENERAL.—The Secretary shall co- operate and consult with the Secretaries of the Interior, Housing and Urban Develop- ment, and Agriculture, and with the States in developing transportation plans and pro- grams that include measures to maintain or enhance the natural beauty of the lands tra- versed. (B) TIMELINE FOR APPROVALS.— (i) IN GENERAL.—The Secretary shall— (I) provide an evaluation under this section to the Secretaries described in subparagraph (A); and (II) provide a period of 30 days for re- ceipt of comments. (ii) ASSUMED ACCEPTANCE.—If the Sec- retary does not receive comments by 15 days after the deadline under clause (i)(II), the Secretary shall assume a lack of objec- tion and proceed with the action. (C) EFFECT.—Nothing in subparagraph (B) affects— (i) the requirements under— (I) subsections (b) through (f); or (II) the consultation process under sec- tion 306108 of title 54; or (ii) programmatic section 4(f) evalua- tions, as described in regulations issued by the Secretary. (3) REQUIREMENT.—After the effective date of the Federal-Aid Highway Act of 1968, the Sec- retary shall not approve any program or project (other than any project for a Federal lands transportation facility) which requires the use of any publicly owned land from a pub- lic park, recreation area, or wildlife and wa- terfowl refuge of national, State, or local sig- nificance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless— (A) there is no feasible and prudent alter- native to the use of the land; and (B) the program includes all possible plan- ning to minimize harm to such park, rec- reational area, wildlife and waterfowl ref- uge, or historic site resulting from such use. (4) STUDIES.—In carrying out the national policy declared in this section the Secretary, in cooperation with the Secretary of the Inte- rior and appropriate State and local officials, is authorized to conduct studies as to the most feasible Federal-aid routes for the movement of motor vehicular traffic through or around national parks so as to best serve the needs of the traveling public while preserving the nat- ural beauty of these areas. (b) 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 (a)(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 (a)(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 Page 204 TITLE 23—HIGHWAYS § 138 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, 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 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. (c) SATISFACTION OF REQUIREMENTS FOR CER- TAIN HISTORIC SITES.— (1) IN GENERAL.—The Secretary shall— (A) align, to the maximum extent prac- ticable, with the requirements of the Na- tional Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and section 306108 of title 54, including 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 (a)(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 (a)(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 (a)(2) through the consultation requirements of section 306108 of title 54. (B) SATISFACTION OF CONDITIONS.—To sat- isfy subsection (a)(2), each individual de- scribed in paragraph (2)(A)(ii) shall concur in the treatment of the applicable historic site described in the memorandum of agreement or programmatic agreement developed under section 306108 of title 54. (d) 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). (e) BRIDGE EXEMPTION FROM CONSIDERATION.— A common post-1945 concrete or steel bridge or culvert (as described in 77 Fed. Reg. 68790) that Page 205 TITLE 23—HIGHWAYS § 138 is exempt from individual review under section 306108 of title 54 shall be exempt from consider- ation under this section. (f) 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 (a), 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. (Added Pub. L. 89–574, § 15(a), Sept. 13, 1966, 80 Stat. 771; amended Pub. L. 90–495, § 18(a), Aug. 23, 1968, 82 Stat. 823; Pub. L. 94–280, title I, § 124, May 5, 1976, 90 Stat. 440; Pub. L. 100–17, title I, § 133(b)(10), Apr. 2, 1987, 101 Stat. 171; Pub. L. 109–59, title VI, § 6009(a)(1), Aug. 10, 2005, 119 Stat. 1874; Pub. L. 112–141, div. A, title I, § 1119(c)(2), July 6, 2012, 126 Stat. 492; Pub. L. 113–287, § 5(f)(2), Dec. 19, 2014, 128 Stat. 3268; Pub. L. 114–94, div. A, title I, §§ 1301(a), 1302(a), 1303(a), title XI, § 11502(a), Dec. 4, 2015, 129 Stat. 1375, 1377, 1378, 1690; Pub. L. 117–58, div. A, title I, § 11316, Nov. 15, 2021, 135 Stat. 543.) Editorial Notes REFERENCES IN TEXT For the effective date of the Federal-Aid Highway Act of 1968, referred to in subsec. (a)(3), see section 37 of Pub. L. 90–495, set out as an Effective Date of 1968 Amendment note under section 101 of this title. The National Environmental Policy Act of 1969, re- ferred to in subsec. (c)(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. (c)(1)(B), is the date of enactment of Pub. L. 114–94, which was approved Dec. 4, 2015. AMENDMENTS 2021—Subsec. (a)(1). Pub. L. 117–58, § 11316(4), des- ignated first sentence of subsec. (a) as par. (1), inserted heading, and substituted ‘‘It is’’ for ‘‘It is declared to be’’. Subsec. (a)(2). Pub. L. 117–58, § 11316(3), designated sec- ond sentence of subsec. (a) as par. (2)(A), inserted par. and subpar. headings, substituted ‘‘The Secretary’’ for ‘‘The Secretary of Transportation’’, and added subpars. (B) and (C). Subsec. (a)(3). Pub. L. 117–58, § 11316(2), designated third sentence of subsec. (a) as par. (3) and inserted heading, inserted dash after ‘‘unless’’, redesignated cls. (1) and (2) within text as subpars. (A) and (B), respec- tively, and inserted line breaks before each subpar., and substituted ‘‘use of the land; and’’ for ‘‘use of such land, and’’ and ‘‘the program includes’’ for ‘‘such program in- cludes’’. Subsec. (a)(4). Pub. L. 117–58, § 11316(1), designated fourth sentence of subsec. (a) as par. (4) and inserted heading. 2015—Subsec. (c). Pub. L. 114–94, § 1301(a), added sub- sec. (c). Subsec. (d). Pub. L. 114–94, § 1302(a), added subsec. (d). Subsec. (e). Pub. L. 114–94, § 1303(a), added subsec. (e). Subsec. (f). Pub. L. 114–94, § 11502(a), added subsec. (f). 2014—Subsec. (b)(2)(A). Pub. L. 113–287 substituted ‘‘section 306108 of title 54’’ for ‘‘section 106 of the Na- tional Historic Preservation Act (16 U.S.C. 470f)’’ in in- troductory provisions. 2012—Subsec. (a). Pub. L. 112–141 substituted ‘‘Federal lands transportation facility’’ for ‘‘park road or park- way under section 204 of this title’’. 2005—Pub. L. 109–59, § 6009(a)(1)(A), which directed substitution of ‘‘(a) DECLARATION OF POLICY.—It is’’ for ‘‘it is hereby’’, was executed by making the substi- tution for ‘‘It is hereby’’ to reflect the probable intent of Congress. Subsec. (b). Pub. L. 109–59, § 6009(a)(1)(B), added sub- sec. (b). 1987—Pub. L. 100–17 inserted ‘‘(other than any project for a park road or parkway under section 204 of this title)’’ before ‘‘which requires’’ in third sentence. 1976—Pub. L. 94–280 authorized the Secretary, in co- operation with the Secretary of the Interior and appro- priate State and local officials, to conduct studies as to the most feasible Federal-aid routes for the movement of motor vehicular traffic through or around national parks so as to best serve the needs of the traveling pub- lic while preserving the natural beauty of these areas. 1968—Pub. L. 90–495 amended section generally so as to render it identical to section 1653(f) of Title 49, Transportation, governing all programs and projects subject to the jurisdiction of the Secretary of Trans- portation. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title. 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. EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effec- tive and Termination Dates of 2012 Amendment note under section 101 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–495 effective Aug. 23, 1968, see section 37 of Pub. L. 90–495, set out as a note under section 101 of this title. CLARIFICATION OF EXISTING STANDARDS Pub. L. 109–59, title VI, § 6009(b), Aug. 10, 2005, 119 Stat. 1876, provided that: ‘‘(1) IN GENERAL.—Not later than 1 year after the date of enactment of this Act [Aug. 10, 2005], the Secretary [of Transportation] shall (in consultation with affected Page 206 TITLE 23—HIGHWAYS § 139 agencies and interested parties) promulgate regula- tions that clarify the factors to be considered and the standards to be applied in determining the prudence and feasibility of alternatives under section 138 of title 23 and section 303 of title 49, United States Code. ‘‘(2) REQUIREMENTS.—The regulations— ‘‘(A) shall clarify the application of the legal stand- ards to a variety of different types of transportation programs and projects depending on the cir- cumstances of each case; and ‘‘(B) may include, as appropriate, examples to fa- cilitate clear and consistent interpretation by agency decisionmakers.’’ STUDY OF TRANSIT NEEDS IN NATIONAL PARKS AND RELATED PUBLIC LANDS Pub. L. 105–178, title III, § 3039, June 9, 1998, 112 Stat. 393, as amended by Pub. L. 105–206, title IX, § 9009(y), July 22, 1998, 112 Stat. 862, provided that: ‘‘(a) PURPOSES.—The purposes of this section are to encourage and promote the development of transpor- tation systems for the betterment of the national parks and other units of the National Park System, national wildlife refuges, recreational areas, and other public lands in order to conserve natural, historical, and cul- tural resources and prevent adverse impact, relieve congestion, minimize transportation fuel consumption, reduce pollution (including noise and visual pollution), and enhance visitor mobility and accessibility and the visitor experience. ‘‘(b) STUDY.— ‘‘(1) IN GENERAL.—The Secretary, in coordination with the Secretary of the Interior, shall undertake a comprehensive study of alternative transportation needs in national parks and related public lands man- aged by Federal land management agencies [to] assist in carrying out the purposes described in subsection (a). The study shall be submitted to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate not later than January 1, 2000. ‘‘(2) STUDY ELEMENTS.—The study required by para- graph (1) shall— ‘‘(A) identify transportation strategies that im- prove the management of the national parks and related public lands; ‘‘(B) identify national parks and related public lands with existing and potential problems of ad- verse impact, high congestion, and pollution, or which can benefit from alternative transportation modes; ‘‘(C) assess the feasibility of alternative transpor- tation modes; and ‘‘(D) identify and estimate the costs of alter- native transportation modes for each of the na- tional parks and related public lands referred to in paragraph (1). ‘‘(3) DEFINITION.—For purposes of this subsection, the term ‘Federal land management agencies’ means the National Park Service, the United States Fish and Wildlife Service, and the Bureau of Land Manage- ment.’’ STUDY OF ALTERNATIVE TRANSPORTATION MODES IN NATIONAL PARK SYSTEM Pub. L. 102–240, title I, § 1050, Dec. 18, 1991, 105 Stat. 2000, provided that: ‘‘(a) IN GENERAL.—Not later than 12 months after the date of the enactment of this Act [Dec. 18, 1991], the Secretary, in consultation with the Secretary of the In- terior, shall conduct and transmit to Congress a study of alternative transportation modes for use in the Na- tional Park System. In conducting such study, the Sec- retary shall consider (1) the economic and technical feasibility, environmental effects, projected costs and benefits as compared to the costs and benefits of exist- ing transportation systems, and general suitability of transportation modes that would provide efficient and environmentally sound ingress to and egress from Na- tional Park lands; and (2) methods to obtain private capital for the construction of such transportation modes and related infrastructure. ‘‘(b) FUNDING.—From sums authorized to be appro- priated for park roads and parkways for fiscal year 1992, $300,000 shall be available to carry out this sec- tion.’’ § 139. Efficient environmental reviews for project decisionmaking and One Federal Decision (a) DEFINITIONS.—In this section, the following definitions apply: (1) AGENCY.—The term ‘‘agency’’ means any agency, department, or other unit of Federal, State, local, or Indian tribal government. (2) AUTHORIZATION.—The term ‘‘authoriza- tion’’ means any environmental license, per- mit, approval, finding, or other administrative decision related to the environmental review process that is required under Federal law to site, construct, or reconstruct a project. (3) ENVIRONMENTAL DOCUMENT.—The term ‘‘environmental document’’ includes an envi- ronmental assessment, finding of no signifi- cant impact, notice of intent, environmental impact statement, or record of decision under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (4) ENVIRONMENTAL IMPACT STATEMENT.—The term ‘‘environmental impact statement’’ means the detailed statement of environ- mental impacts required to be prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (5) ENVIRONMENTAL REVIEW PROCESS.— (A) IN GENERAL.—The term ‘‘environ- mental review process’’ means the process for preparing for a project an environmental impact statement, environmental assess- ment, categorical exclusion, or other docu- ment prepared under the National Environ- mental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (B) INCLUSIONS.—The term ‘‘environmental review process’’ includes the process and schedule, including a timetable for and com- pletion of any environmental permit, ap- proval, review, or study required for a project under any Federal law other than the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (6) LEAD AGENCY.—The term ‘‘lead agency’’ means the Department of Transportation and, if applicable, any State or local governmental entity serving as a joint lead agency pursuant to this section. (7) MAJOR PROJECT.— (A) IN GENERAL.—The term ‘‘major project’’ means a project for which— (i) multiple permits, approvals, reviews, or studies are required under a Federal law other than the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); (ii) the project sponsor has identified the reasonable availability of funds sufficient to complete the project; (iii) the project is not a covered project (as defined in section 41001 of the FAST Act (42 U.S.C. 4370m)); and (iv)(I) the head of the lead agency has de- termined that an environmental impact statement is required; or