Sec.
777.1 Purpose.
777.2 Definitions.
777.3 Background.
777.5 Federal participation policy.
777.7 Evaluation of impacts.
777.9 Mitigation of impacts.
777.11 Other considerations.
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303; 23 U.S.C. 101(a), 103, 109(h), 133(b)(1), 133(b)(11), 133(d)(2), 138, 315; E.O. 11990; DOT Order 5660.1A; 49 CFR 1.48(b).
To provide policy and procedures for the evaluation and mitigation adverse environmental impacts to wetlands which actually result from new construction of Federal-aid highway projects.
In addition to those contained in 23 U.S.C. 101(a), the following definitions shall apply as used in this regulation:
Biogeochemical transformations. Those changes in chemical compounds and substances which naturally occur in ecosystems. Examples are the carbon, nitrogen, and phosphorus cycles in nature, in which these elements are incorporated from inorganic substances into organic matter and recycled on a continuing basis.
Compensatory mitigation. Activities such as wetland restoration, enhancement, or creation, performed to replace or compensate for the loss of wetlands functional capacity actually the result of Federal-aid highway construction projects. Compensatory mitigation usually occurs in advance of or concurrent with the impact to be mitigated, but may occur after such impacts in special circumstances.
Ecologically desirable. A state or condition desired or wanted as the result of a mitigation agreement that provides additional wetland functional capacity.
No-net-loss of wetlands. A wetland resource conservation and management principle, under which, over the long term, loss of wetlands area or functional capacity is offset by gains in wetland area or functional capacity due to wetland restoration, enhancement, preservation, or creation.
On-site, in-kind mitigation. Compensatory wetland mitigation which replaces wetlands functional capacity lost as a result of a highway project on the same site or in the immediate vicinity of the impacts.
Wetland or wetlands. The terms wetland and wetlands have the same meaning as the definition issued by the U. S. Army Corps of Engineers (33 CFR 328.3(b)) and the U.S. Environmental Protection Agency (40 CFR 230.3).
Wetlands banking and related measures. Efforts, or contributions to efforts, to restore, create, enhance, or, in exceptional circumstances, preserve wetlands functional capacity, usually undertaken outside the area of potential effect of proposed highway projects and intended expressly to compensate for unavoidable adverse wetlands impacts caused by such projects, when compensation could not be achieved or would not be as environmentally beneficial if located at individual project sites.
Wetland enhancement. Increasing wetland functional capacity by modifying the site conditions of an existing wetland. Examples include, but are not limited to, alteration of hydrologic regime, vegetation management, fencing, pest control, and fertilization.
Wetland establishment period. The period required to establish wetland functional capacity in a compensatory wetland mitigation project sufficient to compensate losses due to impacts of Federal-aid highway projects. The establishment period may vary depending on the specific wetland type being developed.
Wetland functional capacity. The ability of a wetland to perform natural functions, such as provide wildlife habitat, store surface water, or perform biogeochemical transformations, as determined by a scientific assessment methodology. Natural functions of wetlands include those listed by the U.S. Army Corps of Engineers at 33 CFR 320.4(b)(2) (i) through (viii).
Wetland restoration. Reestablishment of wetlands functional capacity at a site at which such capacity formerly existed but has since essentially been eliminated.
Wetlands mitigation credit. A unit of wetlands mitigation, defined either by (1) area or (2) a measure of functional capacity through application of a scientific functional assessment methodology.
Executive Order 11990, Protection of Wetlands, and DOT Order 5660.1A, Preservation of the Nation's Wetlands, emphasize the important functions and values inherent in the Nation's wetlands. Federal agencies are directed to avoid new construction in wetlands unless the head of the agency determines that: (1) There is no practicable alternative to such construction, and (2) the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use. Sections 1006 and 1007 of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) (Pub. L. 102-240, 105 Stat. 1914)(codified at Secs. 103 and 133 of title 23, United States Code, respectively) identify additional approaches for mitigation and management of wetland impacts which actually result from highway projects as eligible for Federal participation.
(a) Those measures which the Federal Highway Administration (FHWA) and a State Highway Agency (SHA) find appropriate and necessary to mitigate adverse environmental impacts to wetlands are eligible for Federal participation where the impacts actually result from an FHWA action. The justification for the cost of proposed mitigation measures should be considered in the same context as any other public expenditure; that is, the proposed mitigation represents a reasonable public expenditure when weighed against other social, economic, and environmental values, and the benefit realized is commensurate with the proposed expenditure. Mitigation measures shall give like consideration to traffic needs, safety, durability, and economy of maintenance of the highway.
(b) It is FHWA policy to permit, consistent with the limits set forth in this part, the expenditure of Federal-aid highway funds for activities required for the planning, design, construction, and establishment of wetlands mitigation projects, and acquisition of land or interests therein.
(a) The reasonableness of the public expenditure should be directly related to:
(1) The importance of the impacted wetlands, as determined through a scientific functional assessment methodology and interagency coordination with the appropriate resource management agencies; and
(2) The highway impact on the wetlands, as determined through a scientific functional assessment methodology.
(b) Evaluation of the importance of the impacted wetlands should consider:
(1) The wetlands' functional capacity;
(2) The relative importance of these functions to the total wetland resource of the area; and
(3) Other factors such as uniqueness, esthetics, or cultural values.
(c) A determination of the highway impact should focus on the short- and long-term effects of the project on the wetlands' functional capacity.
(a) Actions eligible for Federal funding. There are a number of actions that can be taken to minimize the impact of highway projects on wetlands. The following actions qualify for Federal-aid highway funding:
(1) Where practicable, avoidance or minimization of wetland impacts through realignment and special design or construction features. In accordance with the Environmental Protection Agency's Clean Water Act Section 404(b)(1) guidelines (40 CFR 230 et seq.), avoidance and then minimization must be given first consideration in the sequence for mitigating wetlands impacts.
(2) After practicable avoidance and minimization measures have been exhausted, other ecologically desirable compensatory mitigation alternatives consistent with the Section 404(b)(1) guidelines, either inside or outside of the right-of-way. This may include on-site mitigation, when that alternative is determined to be ecologically desirable and practicable, improvement of existing degraded or historic wetlands through restoration or enhancement, or creation of new wetlands from non-wetland areas. Restoration or enhancement of wetlands is generally preferable to construction or creation of new wetlands from non-wetland areas. Under this approach, first consideration should be given to the development of compensatory mitigation on publicly owned lands.
(3) Improvements to existing wetlands. Such activities may include, but are not limited to, construction of water level control structures, establishment of wetland vegetation, recontouring of the site, installation or removal of irrigation or water distribution systems, pest control, installation of fencing and other measures to protect, enhance, or restore the wetland character of the site.
(4) Wetlands mitigation banking and related measures.
(b) Participation in wetlands mitigation banks. If the development or acquisition of wetland mitigation credits in wetland mitigation banks, either on or off-site, is determined to be the most ecologically desirable and practicable alternative for compensatory mitigation, the first alternative in mitigation bank use should be those established as publicly owned resources. These can be--
(1) Restored or enhanced wetlands on public lands;
(2) Single purpose publicly owned banks, established by and for the use of a highway agency with Federal-aid participation; or multipurpose publicly owned banks, established with public, non-Federal-aid funds, in which credits may be purchased by highway agencies using Federal-aid funds on a per-credit basis; or
(3) Other forms of mitigation banks in which credits are purchased by State highway agencies to mitigate wetlands impacts actually the result of Federal-aid highway projects.
(c) Contributions to statewide and regional efforts to conserve, restore, enhance and create wetlands. Federal-aid funds may participate in the development of statewide and regional wetlands conservation plans, including any efforts and plans authorized pursuant to the Water Resources Development Act of 1990. Contributions to these efforts may occur in advance of project construction only if such efforts are consistent with all applicable requirements of Federal law and regulations and State transportation planning processes.
(a) The development of measures proposed to mitigate wetlands impacts should include consultation with appropriate State and Federal agencies.
(b) Federal-aid funds may not participate in the replacement of wetlands absent sufficient assurances that the area will be maintained as a wetland.
(c) The acquisition of proprietary interests in replacement wetlands as a mitigation measure may be in fee simple or by easement, as appropriate. The acquisition of ``mitigation credits'' in wetland mitigation banks should be accomplished through a legally recognized instrument, such as permanent easement or deed restriction, which provides for protection and permanent continuation of the wetland nature of the mitigation.
(d) A State Highway Agency (SHA) may acquire privately owned lands in cooperation with another public agency or third party. Such an arrangement may accomplish greater benefits than would otherwise be accomplished by the individual agency acting alone.
(e) An SHA may either transfer the title of lands acquired outside the right-of-way, without credit to Federal funds, to an appropriate public agency (e.g., U.S. Fish and Wildlife Service or State natural resource agency) or enter into an agreement with such agency to manage such lands. When such transfer occurs, there shall be an explicit agreement that the lands or interests therein transferred shall remain in the grantee agency's ownership or control so long as the lands continue to serve the purpose of the original acquisition. In the event the area transferred no longer serves the purpose of the original acquisition, the lands or interests therein transferred shall revert to the SHA for proper disposition.
(f) The reasonable costs of acquiring lands or interests therein to provide replacement lands with equivalent wetlands functional capacity are eligible for Federal participation.
(g) The objective in mitigating impacts to all wetlands in the Federal-aid highway program is to implement the policy of no-net-loss in area or functional capacity. Certain activities to ensure the viability of compensatory mitigation wetlands during the period of establishment are eligible for Federal-aid participation. These include, but are not limited to, such activities as repair or adjustment of water control structures, pest control, irrigation, fencing modifications, and replacement of plantings. The establishment period should be specifically determined by the mitigation agreement among the mitigation bank managers prior to beginning any mitigation activities.
[Federal Register: June 17, 1996 (Volume 61, Number 117)]
[Proposed Rules]
[Page 30553-30559]