774.13—Exceptions.
The Administration has identified various exceptions to the requirement for Section 4(f) approval. These exceptions include, but are not limited to:
(a)
Restoration, rehabilitation, or maintenance of transportation facilities that are on or eligible for the National Register when:
(1)
The Administration concludes, as a result of the consultation under 36 CFR 800.5, that such work will not adversely affect the historic qualities of the facility that caused it to be on or eligible for the National Register, and
(2)
The official(s) with jurisdiction over the Section 4(f) resource have not objected to the Administration conclusion in paragraph (a)(1) of this section.
(1)
The Administration concludes that the archeological resource is important chiefly because of what can be learned by data recovery and has minimal value for preservation in place. This exception applies both to situations where data recovery is undertaken and where the Administration decides, with agreement of the official(s) with jurisdiction, not to recover the resource; and
(2)
The official(s) with jurisdiction over the Section 4(f) resource have been consulted and have not objected to the Administration finding in paragraph (b)(1) of this section.
(c)
Designations of park and recreation lands, wildlife and waterfowl refuges, and historic sites that are made, or determinations of significance that are changed, late in the development of a proposed action. With the exception of the treatment of archeological resources in § 774.9(e), the Administration may permit a project to proceed without consideration under Section 4(f) if the property interest in the Section 4(f) land was acquired for transportation purposes prior to the designation or change in the determination of significance and if an adequate effort was made to identify properties protected by Section 4(f) prior to acquisition. However, if it is reasonably foreseeable that a property would qualify as eligible for the National Register prior to the start of construction, then the property should be treated as a historic site for the purposes of this section.
(d)
Temporary occupancies of land that are so minimal as to not constitute a use within the meaning of Section 4(f). The following conditions must be satisfied:
(1)
Duration must be temporary, i.e., less than the time needed for construction of the project, and there should be no change in ownership of the land;
(2)
Scope of the work must be minor, i.e., both the nature and the magnitude of the changes to the Section 4(f) property are minimal;
(3)
There are no anticipated permanent adverse physical impacts, nor will there be interference with the protected activities, features, or attributes of the property, on either a temporary or permanent basis;
(4)
The land being used must be fully restored, i.e., the property must be returned to a condition which is at least as good as that which existed prior to the project; and
(5)
There must be documented agreement of the official(s) with jurisdiction over the Section 4(f) resource regarding the above conditions.
(2)
National Historic Trails and the Continental Divide National Scenic Trail, designated under the National Trails System Act, 16 U.S.C. 1241-125 1, with the exception of those trail segments that are historic sites as defined in § 774.17 ;
(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; and
(4)
Trails, paths, bikeways, and sidewalks that are part of the local transportation system and which function primarily for transportation.
(1)
The use of the Section 4(f) property is solely for the purpose of preserving or enhancing an activity, feature, or attribute that qualifies the property for Section 4(f) protection; and
(2)
The official(s) with jurisdiction over the Section 4(f) resource agrees in writing to paragraph (g)(1) of this section.