Site hosted by Angelfire.com: Build your free website today!

TITLE 49 - TRANSPORTATION
SUBTITLE I - DEPARTMENT OF TRANSPORTATION
CHAPTER 3 - GENERAL DUTIES AND POWERS
SUBCHAPTER I - DUTIES OF THE SECRETARY OF TRANSPORTATION

Note: Italics indicate text changes signed by President Bush on August 10, 2005

Sec. 303. Policy on lands, wildlife and waterfowl refuges, and historic sites

   (a) It is the policy of the United States Government 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 cooperate 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 activities or facilities.
   (c) Approval of Programs and Projects- Subject to subsection (d), the Secretary may approve a transportation program or project (other than any project for a park road or parkway under section 204 of title 23) requiring 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 alternative to using that land; and
   (2) the program or project includes all possible 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 Secretary 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 REFUGES- The requirements of subsection (c)(1) shall be considered to be satisfied with respect 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 described in paragraph (3) shall not include an alternatives analysis.
   (C) CRITERIA- In making any determination under this subsection, the Secretary shall consider to be part of a transportation program or project any avoidance, minimization, mitigation, or enhancement measures 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 accordance with the consultation process required under section 106 of the National Historic Preservation Act (16 U.S.C. 470f), 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 received written concurrence from the applicable State historic preservation officer or tribal historic preservation officer (and from the Advisory Council on Historic Preservation if the Council is participating in the consultation process); and
   (C) the finding of the Secretary has been developed in consultation with parties consulting 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 waterfowl refuges, the Secretary may make a finding of de minimis impact only if--
   (A) the Secretary has determined, after public notice and opportunity for public review 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 waterfowl refuge eligible for protection under this section; and
   (B) the finding of the Secretary has received concurrence from the officials with jurisdiction over the park, recreation area, or wildlife or waterfowl refuge.

(Pub. L. 97-449, Jan. 12, 1983, 96 Stat. 2419; Pub. L. 100-17, title I, Sec. 133(d), Apr. 2, 1987, 101 Stat. 173, Pub. L. ??? Sec. 6009(a)(2), Aug. 10, 2005.)

Clarification of Existing Standards-

   (1) IN GENERAL- Not later than 1 year after the date of enactment of this Act, the Secretary shall (in consultation with affected agencies and interested parties) promulgate regulations 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 standards to a variety of different types of transportation programs and projects depending on the circumstances of each case; and
   (B) may include, as appropriate, examples to facilitate clear and consistent interpretation by agency decisionmakers.

Implementation Study-

   (1) IN GENERAL- The Secretary shall--
   (A) conduct a study on the implementation of this section and the amendments made by this section; and
   (B) commission an independent review of the study plan and methodology, and any associated conclusions, by the Transportation Research Board of the National Academy of Sciences.
   (2) COMPONENTS- In conducting the study, the Secretary shall evaluate--
   (A) the processes developed under this section and the amendments made by this section and the efficiencies that may result;
   (B) the post-construction effectiveness of impact mitigation and avoidance commitments adopted as part of projects conducted under this section and the amendments made by this section; and
   (C) the quantity of projects with impacts that are considered de minimis under this section and the amendments made by this section, including information on the location, size, and cost of the projects.

REPORT REQUIREMENT-

   The Secretary shall prepare--
   (A) not earlier than the date that is 3 years after the date of enactment of this Act, a report on the results of the study conducted under this subsection; and
   (B) not later than March 1, 2010, an update on the report required under subparagraph (A).

REPORT RECIPIENTS-

   The Secretary shall--
   (A) submit the report, review of the report, and update required under paragraph (3) to--
   (i) the appropriate committees of Congress;
   (ii) the Secretary of the Interior; and
   (iii) the Advisory Council on Historic Preservation; and
   (B) make the report and update available to the public.

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, Sec. 2(b)(2), 80 Stat. 931.
49:1653(f) (1st sentence). Oct. 15, 1966, Pub. L. 89-670, Sec. 4(f), 80 Stat. 934; restated Aug. 23, 1968, Pub. L. 90-495, Sec. 18(b), 82 Stat. 824.
303(b) 49:1653(f) (2d sentence).
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 transportation activities or facilities'' are substituted for ''traversed'' for clarity.
   In subsection (c), before clause (1), the words ''After August 23, 1968'' after ''Secretary'' are omitted as executed. The word ''transportation'' is inserted before ''program'' for clarity. In clause (2), the words ''or project'' are added for consistency.

AMENDMENTS

   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''.

TREATMENT OF MILITARY FLIGHT OPERATIONS

   Pub. L. 105-85, div. A, title X, Sec. 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 section 303(c) of title 49, United States Code.''

SECTION REFERRED TO IN OTHER SECTIONS

   This section is referred to in section 305 of this title; title 16 section 460kkk; title 23 sections 108, 206; title 45 sections 1116, 1212.