[Federal Register Volume 62, Number 117 (Wednesday, June 18, 1997)]
[Proposed Rules]
[Pages 33047-33048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15929]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 777

[Docket No. FHWA-97-2514]
RIN 2125-AD78


Mitigation of Impacts to Wetlands

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM); request for 
comments.

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SUMMARY: The FHWA is supplementing its June 17, 1996, notice of 
proposed rulemaking (NPRM) entitled, ``Mitigation of Impacts to 
Wetlands.'' This SNPRM would clarify the scope of the FHWA's wetlands 
regulations by specifying that they apply to all projects funded 
pursuant to the provisions of title 23, United States Code (Title 23). 
This rulemaking would also make a technical amendment to the text of 
the NPRM.

DATES: Comments must be received on or before August 18, 1997.

ADDRESSES: Submit written, signed comments to the docket number that 
appears in the heading of this document to the Docket Clerk, U.S. DOT 
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-
0001. All comments received will be available for examination at the 
above address between 10 a.m. and 5 p.m., e.t., Monday through Friday, 
except Federal holidays. Those persons or organizations who desire 
notification of receipt of comments must include a self-addressed, 
stamped envelope or 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-31, (202) 366-1372, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC. 20590. Office 
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, 
except Federal holidays.

SUPPLEMENTARY INFORMATION: In an NPRM published on June 17, 1996 (61 FR 
30553), the FHWA proposed to amend 23 CFR part 777, ``Mitigation of 
Impacts to Privately-owned Wetlands,'' in order to update the current, 
out-moded regulations in light of changes brought about by the 
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). The 
ISTEA significantly altered the range and timing of alternatives 
eligible for Federal-aid participation for mitigation of wetland 
impacts due to Federal-aid highway projects. Accordingly, the June 17, 
1996, NPRM would revise the current regulations to conform to the 
ISTEA's requirements, thereby providing more flexibility to State 
highway agencies in determining eligibility of mitigation alternatives 
for Federal participation. This proposal would also broaden the scope 
of the current regulation to encompass all wetlands mitigation projects 
eligible for Federal participation, not just those involving privately 
owned wetlands.
    In the months since the NPRM was published, however, the FHWA has 
determined that certain language in the proposed regulation, carried 
over from the original rulemaking published in 1980, could be 
interpreted in an unnecessarily restrictive manner. Part 777, as now 
written, states that it applies to ``the evaluation and mitigation of 
adverse environmental impacts to privately owned wetlands caused by new 
construction of Federal-aid highway projects.'' 23 CFR 777.1. The NPRM 
would retain this language, with the exception of the words ``privately 
owned.'' The FHWA believes this provision is unnecessarily restrictive, 
because under current law Federal-aid funds may be used to improve or 
restore wetlands affected by past Federal-aid highway projects, even 
when no current Federal-aid project is taking place in the vicinity.
    Four provisions of Title 23 sanction such ``historic wetlands'' 
restoration projects. First, both the National Highway System and 
Surface Transportation Programs, created by ISTEA, allow states to use 
Federal-aid funds for wetlands mitigation activities. 23 U.S.C. 
103(i)(13) and 133(b)(11). These provisions are identically worded, and 
allow the expenditure of Federal-aid highway funds towards efforts to 
conserve, restore, enhance, and create wetlands. Both provisions state 
that ``[c]ontributions to such mitigation efforts may take place 
concurrent with or in advance of project construction.'' The FHWA 
believes this phrase may be fairly interpreted as permissive, rather 
than restrictive and, therefore, States are permitted by these two 
provisions to use Federal-aid funds for the stated purposes concurrent 
with or in advance of project construction. Nothing in the language of 
sections 103(i)(13) or 133(e)(11) forbids states from doing so after a 
project has been completed. No specific prohibition having been written 
into these provisions, the FHWA does not believe one should be implied.
    Two other provisions of Title 23, when read together, also provide 
a basis for funding so-called historic wetlands restoration projects. 
The first is section 133(b)(1), which permits Surface Transportation 
Program (STP) funds to be spent for ``mitigation of damage to wildlife, 
habitat, and ecosystems caused by a transportation project funded under 
this Title.'' Under section 101 of Title 23, the term ``project'' means 
``an undertaking to construct a particular portion of a highway, or if 
the context so implies, the particular portion of a highway so 
constructed.'' This definition is broad enough to encompass not just 
new or even recent projects, but any highway that has been constructed 
using Title 23 funds.
    A final category of funding for which historic wetlands projects 
may be eligible is that available under the STP for transportation 
enhancement activities (TEAs). 23 U.S.C. 133(e)(8). The definition of 
TEAs (23 U.S.C. 101) does limit them to those related to particular 
``projects'' (as defined in section101), but does not specify any 
particular time frame in which they must take place. Historic wetlands 
projects could qualify for STP funds if legitimately tied to one of the 
categories of TEAs set forth in the definition, such as scenic 
beautification or mitigation of water pollution due to highway runoff.
    With all this in mind, the FHWA has decided to issue this SNPRM, 
which would further amend Part 777 by revising Sec. 777.1 to read: ``To 
provide policy and procedures for evaluation and mitigation of adverse 
environmental impacts to wetlands resulting from projects funded 
pursuant to the provisions of title 23, United States Code.'' The FHWA 
invites comments on this new proposal.
    This SNPRM also makes a technical amendment to the text of the June 
17, 1996, NPRM. Although the NPRM would expand the application of part 
777 to the mitigation of environmental impacts to both private and 
publicly owned wetlands, the regulatory text of the NPRM inadvertently 
retained the heading, ``Mitigation of Impacts to Privately Owned 
Wetlands.'' This SNPRM would correct that oversight by removing the 
words ``Privately Owned'' from the heading.

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

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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 supplement an NPRM proposing to 
amend FHWA regulations regarding mitigation of impacts to privately 
owned wetlands. These regulations have become outdated because of 
provisions in sections 1006 and 1007 of the ISTEA, which authorize 
greater flexibility for Federal participation in mitigating impacts to 
wetlands. These amendments have been codified at 23 U.S.C. 103 and 133.
    This SNPRM 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. Instead, this SNPRM would merely 
clarify the scope of the FHWA's wetlands regulations by specifying that 
they apply to all projects funded pursuant to title 23, United States 
Code (Title 23). 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 SNPRM on small 
entities and has determined it would not have a significant economic 
impact on a substantial number of small entities. Supplementing the 
FHWA's June 17, 1996, NPRM in this manner would not affect the amount 
of funding available to the States through the STP or NHS programs, or 
the procedures used to 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. This SNPRM 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 SNPRM would not, in and of itself, constitute a major Federal 
action significantly affecting the quality of the human environment. 
Instead, it would clarify the scope of the June 17, 1996, NPRM, which 
is intended to increase the flexibility available to States when 
deciding how to mitigate impacts to wetlands resulting from projects 
funded pursuant to the provisions of title 23, United States Code. 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 SNPRM 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 9, 1997.
Jane Garvey,
Acting Administrator for the Federal Highway Administration.

    In consideration of the foregoing, the FHWA proposes to amend part 
777 of title 23, Code of Federal Regulations, as follows:

PART 777--MITIGATION OF IMPACTS TO WETLANDS

    1. The authority citation for part 777 is revised to read as 
follows:

    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).

    2. The heading of part 777 is revised to read as set forth above
    3. Section 777.1 is revised to read as follows:


Sec. 777.1  Purpose.

    To provide policy and procedures for the evaluation and mitigation 
of adverse environmental impacts to wetlands resulting from projects 
funded pursuant to the provisions of title 23, United States Code.
[FR Doc. 97-15929 Filed 6-17-97; 8:45 am]
BILLING CODE 4910-22-P