[Federal Register Volume 61, Number 117 (Monday, June 17, 1996)]
[Proposed Rules]
[Pages 30553-30559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15297]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 777
[FHWA Docket No. 96-8]
RIN 2125-AD78
Mitigation of Impacts to Wetlands
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: In accordance with the President's Regulatory Reinvention
Initiative, the FHWA proposes to amend its regulation outlining the
procedures to be followed in mitigating the impacts of Federal-aid
highway projects and programs to wetlands. The current regulation has
become outdated as a result of advances in the science of wetland
management and the amendments made by sections 1006(d) and 1007(a) of
the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA)
(Pub. L. 102-240, 105 Stat.1914) to the statutory provisions of title
23, United States Code (U.S.C.). The ISTEA amendments significantly
alter the range and timing of alternatives eligible for Federal-aid
participation for mitigation of wetland impacts due to Federal-aid
highway projects. Accordingly, this proposal would revise the current
regulation to conform to the ISTEA amendments, thereby providing more
flexibility to State highway agencies in determining eligibility of
mitigation alternatives for Federal participation. This proposal would
broaden the scope of the current regulation to encompass all wetlands
mitigation projects eligible for Federal participation, not just those
involving privately owned wetlands.
DATES: Comments must be received on or before August 16, 1996.
ADDRESSES: Submit written, signed comments to FHWA Docket No. 96-8,
Federal Highway Administration, Room 4232, HCC-10, Office of the Chief
Counsel, 400 Seventh Street, SW., Washington, D.C. 20590. All comments
received will be available for examination at the above address between
8:30 a.m. and 3:30 p.m., e.t., Monday through Friday, except Federal
holidays. Those desiring notice of receipt of comments must include a
self-addressed, stamped postcard.
FOR FURTHER INFORMATION CONTACT: Mr. Paul Garrett, Office of
Environment and Planning, HEP-42, (202) 366-9173, or Mr. Brett Gainer,
Office of the Chief Counsel, HCC-32, (202) 366-1372, Federal Highway
Administration, 400 Seventh Street, SW., Washington, D.C. 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
Executive Order (E.O.) 11990, ``Protection of Wetlands,'' requires
all Federal agencies to ``avoid to the extent possible the long and
short term adverse impacts associated with the destruction or
modification of wetlands'' (42 FR 26961, May 25, 1977). Specifically,
this
[[Page 30554]]
order directs Federal agencies to avoid new construction in wetlands
unless (1) there is no practicable alternative to such construction,
and (2) the proposed action includes all practicable measures to
minimize harm to wetlands resulting from such construction. The
Department of Transportation subsequently issued DOT Order 5660.1A,
Preservation of the Nation's Wetlands, which provided departmental
policy and instruction for implementing E.O. 11990. Copies of these
documents are available for inspection and copying pursuant to 49 CFR
Part 7, App. D.
The provisions of E.O. 11990, the Clean Water Act (33 U.S.C 1344 et
seq.), and the DOT Order proclaim that wetlands are a valuable national
resource and that special efforts are required of all Federal agencies
to preserve the beneficial values inherent in them. Wetlands are a
valuable resource for a number of reasons. They provide habitats for
numerous plants and animals, including many commercially important
species. In addition, wetlands can reduce the severity of flooding,
control erosion, and remove contaminants from polluted waters.
Consequently, wetland preservation has become a matter of concern to
Federal and State agencies charged with resource management
responsibilities and has been emphasized by resource conservation
groups.
Under E.O. 11990 each Federal agency must avoid, whenever
practicable, impacts to wetlands. Therefore, a highway location or
design which will impact a wetland must be evaluated for its natural
functions and values, in addition to all relevant social, economic, and
physical environmental values. Inevitably, there will be instances when
reasoned and balanced judgments will result in the location of highways
in wetlands and in the destruction or modification of those resources.
In such cases, E.O. 11990 requires that ``all practicable measures to
minimize harm to the wetland(s) be incorporated into the project.'' In
addition, section 404 of the Clean Water Act, entitled Permits for
Dredged or Fill Material, requires that a permit be obtained through
the U. S. Army Corps of Engineers for proposed discharges of dredged or
fill material into waters of the United States, including wetlands (33
CFR 320-330; (Regulatory Program)). The Regulatory Program and
associated guidelines (40 CFR 230-233) require, among other things,
assessment of the functions and values of wetlands to be impacted by
proposed discharges of dredged or fill material as part of the Public
Interest Review Process. Furthermore, permits issued by the Corps of
Engineers under authority of the Regulatory Program may contain
conditions requiring mitigation to compensate for impacts to wetlands
that result in a loss of wetlands functions and values to society.
Another Federal statute applicable to Federal-aid highway projects
involving impacts to wetlands is section 4(f) of the Department of
Transportation Act 1 (49 U.S.C. 303 and 23 U.S.C. 138). Section
4(f) provides protection for certain environmentally significant,
publicly owned land areas including parks, wildlife refuges, and
waterfowl refuges. When such lands must be used for a federally-
assisted highway project, section 4(f) requires all possible planning
to minimize harm to the protected area. If wetlands included in these
publicly owned 4(f) lands are used for or impacted by a highway
project, current FHWA policy permits Federal-aid highway funds to be
used in the acquisition, restoration, or creation of replacement
wetlands or improvement of existing wetlands as mitigation. Federal
participation must be based on a determination that such mitigation
measures are necessary to meet the section 4(f) requirement that all
possible planning and measures be undertaken to minimize harm. Federal
assistance in these instances often involves the use of Federal-aid
funds for activities outside the right-of-way. The FHWA regulations
implementing section 4(f) are found at 23 CFR 771.135.
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\1\ Section 4(f) of Pub. L. 89-670, 80 Stat. 934, was repealed
by Pub. L. 97-449, 96 Stat. 2444, and enacted without substantive
change at 49 U.S.C. 303. Section 138 of title 23, U.S.C., remains
unchanged. Because of common usage and familiarity, the term section
4(f) continues to be used by the Department of Transportation in
matters relating to 49 U.S.C. 303 and 23 U.S.C. 138.
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The FHWA has long recognized that the importance of wetland
preservation is not limited to publicly owned wetlands. Privately owned
wetlands are often an important component of local, State, and Federal
wetland management programs. In addition, the requirements of E.O.
11990 and section 404 of the Clean Water Act apply to wetlands
regardless of ownership. Consequently, the FHWA is required to find
that proposed Federal-aid projects include all practicable measures to
minimize harm to privately owned wetlands adversely impacted by the
projects. The current part 777, which this NPRM proposes to amend, was
promulgated to address these requirements.
Discussion of Proposed Rulemaking
Congress included provisions in the ISTEA granting the FHWA more
flexibility to authorize the use of Federal-aid highway funds for
mitigation of impacts to wetlands caused by federally-funded highway
projects. These provisions are codified at 23 U.S.C. 103(i)(13) and
133(b)(11), and pertain to projects eligible for National Highway
System (NHS) and Surface Transportation Program (STP) funds,
respectively. Consequently, the FHWA is proposing to amend its
regulations to authorize the expenditure of Federal-aid highway funds
for mitigation of impacts to wetlands due to federally-funded highway
projects.
Mitigation activities may include, but are not limited to,
participation in wetlands mitigation banks, contributions to statewide
and regional efforts to conserve, restore, enhance and create wetlands,
and development of statewide and regional wetlands conservation and
mitigation plans, including any such banks, efforts, and plans
authorized pursuant to the Water Resources Development Act of 1990
(Pub. L. 101-640, 104 Stat. 4604). Contributions toward such efforts
may take place concurrent with or in advance of project construction,
but contributions may occur in advance of construction only if such
mitigation efforts are consistent with all applicable requirements of
Federal law and State planning processes.
Most significantly, measures found by a State highway agency and
the FHWA to be appropriate and necessary to mitigate significant
adverse impacts to publicly or privately owned wetlands would be
eligible for Federal participation where the impacts actually result
from an FHWA action. Appropriate mitigation measures could include the
acquisition of additional land or interests in land for the purpose of
mitigating adverse environmental impacts to wetlands which actually
result from a Federal-aid highway project.
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 would have to represent a
reasonable public expenditure when weighed against other social,
economic, and environmental values, and the benefit realized would have
to be commensurate with the proposed expenditure. Decisions on
mitigation measures would be required to take into account
consideration of traffic needs, safety, durability, and economy of
maintenance of the highway.
As previously mentioned, the proposed amendments to 23 CFR 777
formally express the FHWA's current
[[Page 30555]]
policy and incorporate the eligibility criteria set forth in the ISTEA
with respect to mitigation of impacts to both publicly and privately
owned wetlands which actually result from Federal-aid highway projects
or an FHWA action. The explanation of Federal participation policy
already included in Sec. 777.5 is expanded in the proposed regulation.
The proposed regulation would also include additional guidance and
procedures to be followed in the evaluation (Sec. 777.7) and mitigation
of impacts (Secs. 777.9, 777.11).
The requirements of 23 CFR 777 apply to the mitigation of impacts
to wetlands which actually result from federally-funded highway
projects or programs. The requirements and policies stated therein do
not apply to highways or other projects funded by other Federal, State,
or private agencies or entities.
Section-By-Section Analysis
The following section discusses both the current provisions of 23
CFR 777 and the proposed changes to that regulation contained in this
NPRM.
Section 777.1
Section 777.1 would be amended to expand the applicability of the
regulation to Federal-aid participation in mitigation of all impacts to
publicly or privately owned wetlands which actually result from
Federal-aid highway projects. The existing regulation applies only to
privately owned wetlands.
Section 777.2
Section 777.2 would be a new section. This section would contain
definitions for administrative, scientific, and technical terms found
in the amended regulation.
Section 777.3
Section 777.3, Background, would be amended to include discussion
of the ISTEA provisions which increased the eligibility for Federal-aid
participation of efforts to mitigate the wetlands impacts of highway
projects funded under the provisions of the National Highway System
(ISTEA Sec. 1006 (23 U.S.C. 103)) and Surface Transportation Program
(ISTEA Sec. 1007 (23 U.S.C. 133)). As in the existing regulation, this
section would also cite the authority and requirements of E.O. 11990 to
minimize wetlands losses and DOT Order 5660.1A for implementing wetland
mitigation in FHWA programs.
Section 777.5
The FHWA wetlands policy and practice, incorporating expanded
scientific knowledge and management experience, have recognized that
wetland mitigation includes a wider range of impacts, alternatives, and
activities than were known or understood when the existing regulation
was promulgated in 1980. The science and technology of wetland
mitigation have identified methods and needs for effective wetland
mitigation that were not well known at the time the existing regulation
was issued. The amended Sec. 777.5, Federal Participation Policy, would
expand applicability of the regulation to include all impacts to
wetlands which actually result from Federal-aid highway projects. The
kinds of activities needed to mitigate wetland impacts include the
general areas of planning, design, right-of-way acquisition,
construction, and establishment. Specific tasks and activities which
fall within these general areas are identified and included in the
amended section as eligible for Federal-aid participation. Specific
project criteria for Federal participation in wetlands mitigation
activities are restated from the existing regulation, and are
consistent with 23 CFR 771, Environmental Impacts and Related
Procedures. The ``test of reasonableness'' in the existing regulation
for the expenditure of public funds for wetlands mitigation is included
in the NPRM. This test is based on commensurate social, economic, and
environmental values and benefits of wetlands mitigation relative to
costs of the mitigation and benefits of the highway project or program.
Section 777.7
Section 777.7, Evaluation of Impacts, currently provides that the
extent of Federal participation in mitigation measures should be
directly related to the importance and functional capacity of the
impacted wetlands and the extent of wetland losses due to highway
impacts.
In both the existing regulation and NPRM, Section 777.7 relates the
cost of Federal-aid participation in wetland mitigation activities to
the importance of the wetlands impacted in the project area. As
amended, this section would refer to scientific functional assessment
methodologies as the appropriate tool for evaluating wetlands resources
and impacts, and would recognize the need for interdisciplinary,
interagency coordination in evaluating wetlands functions and values.
General functions of wetlands would be identified using current
scientific terminology and concepts of wetlands analysis.
Section 777.9
Section 777.9, Mitigation of Impacts, identifies general categories
of actions, taken to mitigate the impact of highway projects on
wetlands, which are eligible for Federal-aid participation. Federal
participation is not, however, limited to these activities, if other
alternatives are practicable, more ecologically desirable, and
represent a more effective expenditure of public funds. The existing
Sec. 777.9 states specific requirements for the protection of wetlands
established as compensatory mitigation. Two criteria for Federal-aid
participation in wetland mitigation are that the mitigation must
represent a reasonable expenditure of public funds and be in the public
interest.
In Sec. 777.9(a) of the NPRM, the Environmental Protection Agency's
Clean Water Act Sec. 404(b)(1) guidelines (40 CFR 230) are referenced
to establish the required sequence of alternatives that must be
considered for mitigation of wetlands impacts. The 404(b)(1) guidelines
require that, where practicable, avoidance and then minimization of
wetland impacts be given first consideration. Under Sec. 777.9(a)(2) of
the NPRM, once practicable avoidance and minimization measures had been
exhausted, the regulation would establish the objective of selecting
ecologically desirable and practicable compensatory mitigation
alternatives consistent with the 404(b)(1) guidelines. The requirement
to consider compensatory mitigation within the highway right-of-way
before other, possibly more ecologically desirable and reasonable
alternatives outside of the right-of-way, would be removed by this
NPRM. The existing Sec. 777.9(b) contains the requirement that the
public interest in wetlands restored, enhanced, or created as part of
mitigation for wetlands impacts due to Federal-aid highway projects
must be sufficient to ensure that they will be maintained as wetlands.
This requirement would be moved to Sec. 777.11(b). Section 777.9(a)(3)
would be added, and would list examples of the specific kinds of
activities eligible for Federal-aid participation when existing
wetlands are being enhanced or restored.
A new Sec. 777.9(b) would be added, and would cite and explain the
specific mitigation alternatives listed in the ISTEA eligible for
Federal-aid participation. The activities listed in the ISTEA are
related to wetlands banking, planning, and resource inventory. These
activities are not exclusive, and other activities listed in this
regulation would also be eligible. This paragraph would
[[Page 30556]]
conform the regulation to ISTEA provisions allowing the use of Federal-
aid highway funds to pay for costs of wetland mitigation activities as
needed to mitigate impacts caused by Federal-aid highway projects and
programs.
Section 777.11
Like any other activity in which Federal funds participate, the use
of those funds is governed by various restrictions and conditions
established by Federal law and agency policy in order to protect the
public interest and provide for sound program management. A number of
these considerations are set forth in Sec. 777.11, Other
Considerations, including consultation requirements and provisions for
ownership and management of acquired lands. Depending upon the extent
of mitigation justified under the provisions of Sec. 777.7,
Sec. 777.11(f) currently permits Federal participation in the
acquisition of replacement land for privately owned wetlands directly
impacted by a Federal-aid highway project. Such privately owned lands
thus acquired, above and beyond wetlands purchased for use as highway
right-of-way, will thereafter be retained in public ownership and
dedicated to future use as wetlands. The replacement ratio for wetlands
directly affected by a Federal-aid highway project should be determined
based on use of a scientific methodology of wetland functional
assessment and best professional judgment, in combination with
interagency coordination and considerations of fiscal responsibility
and a desire to minimize adverse impacts on the local tax base of
converting land from private to public ownership.
In both the existing regulation and the NPRM, Sec. 777.11(a)
emphasizes the need for consultation with appropriate State and Federal
agencies concerning impacts to wetlands on Federal-aid highway
projects. Section 777.11(b) of the NPRM, furthermore, would require
that the public interest in all compensatory wetland mitigation
projects, where wetlands have been purchased, enhanced, restored, or
created with Federal-aid highway funds, be sufficient to ensure that
the wetlands are permanently protected. This includes both private and
public wetlands mitigation banks. The current Sec. 777.11(b), which
sets forth the definition of wetlands to be used in applying the
regulation, would be moved to Sec. 777.2, Definitions. Sections 777.11
(c) through (g) of both the existing regulation and the NPRM are
intended to state the conditions and requirements for acquisition of
interests in lands for purposes of mitigating wetlands impacts due to
Federal-aid highway projects. For its part, Sec. 777.11(g) would
emphasize that the objective of wetlands mitigation in the Federal-aid
highway program is to implement the policy of no-net-loss in area or
functional capacity. To that end, this paragraph would declare eligible
for Federal-aid participation certain activities intended to ensure the
viability of compensatory mitigation wetlands during the period of
establishment. These would include, but would not be limited to, such
activities as repair or adjustment of water control structures, pest
control, irrigation, fencing modifications, and replacement of
plantings. The NPRM would encourage mitigation bank managers to
determine the establishment period in the mitigation agreement itself
prior to beginning any mitigation activities.
The NPRM would allow Federal-aid participation in the mitigation of
impacts to both publicly or privately owned wetlands if such impacts
actually resulted from Federal-aid highway projects. This proposal
would not, however, require States to undertake mitigation efforts.
Instead, part 777 would continue to provide policy and procedures for
the evaluation and mitigation of adverse environmental impacts to
wetlands which actually result from new construction of Federal-aid
highway projects. Therefore, the FHWA believes the current
Sec. 777.11(h)--with its explicit statement that the program is not a
mandatory one--is no longer necessary and the NPRM would delete this
provision. Finally, Sec. 777.11(i) of the existing regulation, which
addresses mitigation of ecological impacts in non-wetlands, would be
deleted. Since this NPRM would apply solely to wetlands issues, the
FHWA has determined that the current Sec. 777.11(i) would not be
applicable to the policy set forth in this proposal. The FHWA has also
determined that this paragraph is not consistent with 23 U.S.C.
133(b)(1), added by the ISTEA, which allows States to obligate STP
funds to mitigate damage to wildlife, habitat, and ecosystems caused by
a transportation project funded under title 23, United States Code.
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable, but the FHWA may issue a final
rule at any time after the close of the comment period. In addition to
late comments, the FHWA will also continue to file in the docket
relevant information that becomes available after the comment closing
date, and interested persons should continue to examine the docket for
new material.
Executive Order 12866 (Regulatory Planning and Review and DOT
Regulatory Policies and Procedures)
The FHWA has considered the impact of this document and has
determined that it is neither a significant rulemaking action within
the meaning of Executive Order 12866 nor a significant rulemaking under
the regulatory policies and procedures of the Department of
Transportation. This rulemaking would amend FHWA regulations regarding
mitigation of impacts to privately owned wetlands, which have become
outdated because of provisions in Secs. 1006 and 1007 of the ISTEA
authorizing greater flexibility for Federal participation in mitigating
impacts to wetlands. These amendments have been codified at 23 U.S.C.
103 and 133.
This rulemaking would not cause any significant changes to the
amount of funding available to the States under the STP or NHS programs
or add to the process by which States receive funding. The provisions
of this proposed rulemaking would not require the additional
expenditure of Federal-aid or State highway funds. Thus, it is
anticipated that the economic impact of this rulemaking would be
minimal. In addition, it would not create a serious inconsistency with
any other agency's action or materially alter the budgetary impact of
any entitlements, grants, user fees, or loan programs; nor will
amendment of this regulation raise any novel legal or policy issues.
Therefore, a full regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small entities
and has determined that amendment of the FHWA regulations regarding
mitigation of impacts to wetlands would not have a significant economic
impact on a substantial number of small entities. Amending this
regulation would not affect the amount of funding available to the
States through the STP or NHS programs, or the procedures used to
[[Page 30557]]
select the States eligible to receive these funds. Furthermore, States
are not included in the definition of ``small entity'' set forth in 5
U.S.C. 601. For these reasons, and for those set forth in the analysis
of E.O. 12866, the FHWA hereby certifies that this action will not have
a significant economic impact on a substantial number of small
entities.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not raise sufficient federalism implications to
warrant the preparation of a federalism assessment. Amendment of this
FHWA regulation concerning the mitigation of impacts to wetlands would
not preempt any State law or State regulation. No additional costs or
burdens would be imposed on the States as a result of this action, and
the States' ability to discharge traditional State governmental
functions would not be affected by this rulemaking.
Executive Order 12372
Catalog of Domestic Assistance Program Number 20.205, Highway
Planning and Construction. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Paperwork Reduction Act
This action does not create a collection of information requirement
for the purposes of the Paperwork Reduction Act of 1995, 44 U.S.C.
3501-3520.
National Environmental Policy Act
The FHWA has analyzed this rulemaking for the purposes of the
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347).
This NPRM would not, in and of itself, constitute a major Federal
action significantly affecting the quality of the human environment.
Instead, it would increase the flexibility available to States when
deciding how to mitigate impacts to wetlands caused by those Federal-
aid highway projects they undertake. Such impacts and appropriate
mitigation measures would be evaluated pursuant to NEPA on a project-
by-project basis by the States and the FHWA. Accordingly, promulgation
of this NPRM would not require the preparation of an environmental
impact statement.
Regulatory Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 23 CFR Part 777
Flood plains, Grant programs--transportation, Highways and roads,
Wetlands.
Issued on: June 4, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to revise part
777 of title 23, Code of Federal Regulations, as set forth below.
PART 777--MITIGATION OF IMPACTS TO PRIVATELY OWNED WETLANDS
1. Part 777 is revised to read as follows:
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).
Sec. 777.1 Purpose.
To provide policy and procedures for the evaluation and mitigation
of adverse environmental impacts to wetlands which actually result from
new construction of Federal-aid highway projects.
Sec. 777.2 Definitions.
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
[[Page 30558]]
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.
Sec. 777.3 Background.
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.
Sec. 777.5 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.
Sec. 777.7 Evaluation of impacts.
(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.
Sec. 777.9 Mitigation of impacts.
(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.
Sec. 777.11 Other considerations.
(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
[[Page 30559]]
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.
[FR Doc. 96-15297 Filed 6-14-96; 8:45 am]
BILLING CODE 4910-22-P