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

(a) Declaration of Policy. (1) In general. It is national policy to make a special effort to preserve the natural beauty of the countryside, of public parks and recreation land, of wildlife and waterfowl refuges, and of historic sites. (2) Cooperation and consultation. (A) The Secretary of Transportation must cooperate and consult with the Secretaries of the Interior, of Housing and Urban Development, and of Agriculture, and with the States, when developing transportation plans and programs that include ways to maintain or improve the natural beauty of the land the roads cross. (B) Timeline for approvals: the Secretary must give an evaluation under this section to those other Secretaries and allow 30 days for comments; if no comments arrive within 15 days after that 30-day deadline, the Secretary may assume there's no objection and move forward. (C) None of this changes the requirements in subsections (b) through (f), the consultation process under section 306108 of title 54, or the Secretary's regulations on programmatic evaluations under this section. (3) Requirement. Since the Federal-Aid Highway Act of 1968 took effect, the Secretary generally cannot approve a program or project — other than one for a Federal lands transportation facility — that uses publicly owned land from a nationally, State, or locally significant public park, recreation area, or wildlife or waterfowl refuge (as determined by the officials in charge of it), or land from a nationally, State, or locally significant historic site (as determined the same way). The only exception is when (A) there's no feasible and prudent alternative to using that land, and (B) the program includes all possible planning to minimize the harm the project causes to the park, recreation area, refuge, or historic site. (4) Studies. The Secretary, working with the Secretary of the Interior and with State and local officials, may study the most workable Federal-aid routes for cars and trucks to travel through or around national parks — routes that serve travelers well while still preserving the parks' natural beauty. (b) De Minimis Impacts. (1) The requirements above count as satisfied if the Secretary determines, following the rules in this subsection, that a transportation program or project will have only a minimal ("de minimis") impact on a historic site, or on a park, recreation area, or wildlife or waterfowl refuge. For parks, recreation areas, and refuges, a minimal-impact finding also means the project doesn't need a full alternatives analysis. In making any minimal-impact finding, the Secretary must count any avoidance, minimization, mitigation, or enhancement steps that are required as a condition of approving the project. (2) For historic sites, the Secretary may find a minimal impact only if: (A) the Secretary has determined, through the consultation process under section 306108 of title 54, either that the project will have no adverse effect on the site or that no historic properties are affected; (B) the applicable State or tribal historic preservation officer has given written agreement to that finding (and so has the Advisory Council on Historic Preservation, if it's part of the consultation); and (C) the finding was developed together with the parties who took part in that consultation. (3) For parks, recreation areas, and wildlife or waterfowl refuges, the Secretary may find a minimal impact only if: (A) after giving public notice and a chance for public comment, the Secretary determines the project won't hurt the activities, features, and qualities that make the site eligible for protection; and (B) the officials in charge of the park, recreation area, or refuge agree with that finding. (c) Meeting the requirements for certain historic sites. (1) The Secretary must, as much as practical, line up this section's process with the National Environmental Policy Act and with section 306108 of title 54, including their regulations, and must — within 90 days of this subsection becoming law — work with the Secretary of the Interior and the head of the Advisory Council on Historic Preservation (the "Council") to set up procedures for doing that. (2) Avoidance alternative analysis. If, during the environmental review required by the National Environmental Policy Act, the Secretary determines there's no feasible or prudent way to avoid using a historic site, the Secretary may include that determination in the environmental review, notify the applicable preservation officers, the Council (if involved), and the Secretary of the Interior, and ask each of them to agree that the determination is enough to satisfy the "no feasible and prudent alternative" requirement. If all of them agree, no further analysis on that point is needed. The notice and every agreement received must be included in the Secretary's final decision document and posted on an appropriate federal website within 3 days after the Secretary receives all the requested agreements. (3) Aligning historical reviews. If the Secretary, the preservation officer, the Council, and the Secretary of the Interior all agree that no feasible and prudent alternative exists, the Secretary may tell them the project will satisfy the "minimize harm" requirement through the consultation process under section 306108 of title 54 instead. To actually satisfy that requirement, each of those officials must agree, in the resulting agreement document, to how the historic site will be treated. (d) What these requirements are commonly called. The requirements in this section are commonly known as "section 4(f) requirements," after section 4(f) of the Department of Transportation Act as it existed before that section was repealed. The requirements in section 306108 of title 54 are commonly known as "section 106 requirements," after section 106 of the National Historic Preservation Act of 1966 as it existed before that section was repealed. (e) Bridge exemption. A common concrete or steel bridge or culvert built after 1945 (of the kind described in a specific 2012 Federal Register notice) that's already exempt from individual review under section 306108 of title 54 is also exempt from review under this section. (f) Rail and transit. (1) Improving, maintaining, repairing, or running a railroad or rail transit line — or part of one — that is in use, or was historically used, to move goods or passengers does not count as a "use" of a historic site under subsection (a). This is true whether or not the line is listed, or eligible to be listed, on the National Register of Historic Places. (2) Exceptions: that protection does not cover (A) stations, or (B) bridges or tunnels on railroad lines that have been abandoned, or on transit lines that are no longer in use. But those exceptions themselves don't apply to bridges or tunnels on lines where service was simply discontinued, or that have been "railbanked" or otherwise kept in reserve for future transportation of goods or passengers — those still get the protection.