[Federal Register Volume 64, Number 66 (Wednesday, April 7, 1999)]
[Proposed Rules]
[Pages 16870-16874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8444]



Federal Highway Administration

23 CFR Part 777

[FHWA Docket No. FHWA-97-2514; 96-8]
RIN 2125-AD78

Mitigation of Impacts to Wetlands and Natural Habitat

AGENCY: Federal Highway Administration (FHWA), DOT.

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


SUMMARY: The FHWA is further supplementing its June 17, 1996, notice of 
proposed rulemaking (NPRM), Mitigation of Impacts to Wetlands, and June 
18, 1997, supplemental notice of proposed rulemaking (SNPRM) on the 
same subject, as described in the supplementary information. This SNPRM 
also updates the FHWA's wetlands regulation to conform with wetland and 
natural habitat mitigation provisions contained in the recently enacted 
Transportation Equity Act for the 21st Century (TEA-21).

DATES: Comments must be received on or before June 7, 1999.

ADDRESSES: All signed, written comments must refer to the docket number 
appearing at the top of this document. Submit all comments 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 desiring 
notification of receipt of comments must include a self-addressed, 
stamped envelope or postcard.

[[Page 16871]]

FOR FURTHER INFORMATION CONTACT: Mr. Paul Garrett, Office of Natural 
Environment, HENE, (303) 969-5772, extension 332, or Mr. Brett Gainer, 
Office of the Chief Counsel, HCC-31, (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.


Electronic Access

    Internet users can access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal source locator (URL): 
http://dms.dot.gov. It is available 24 hours each day, 365 days a year. 
Please follow the instructions online for more information and help.
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (202)-512-1661. Internet 
users may reach the Federal Register's home page at: http://
www.nara.gov/fedreg and the Government Printing Office's database at 

I. The Rulemaking Process

    This rulemaking would amend the FHWA's regulation on wetlands 
mitigation to conform with the provisions of the Intermodal Surface 
Transportation Efficiency Act (ISTEA) (Pub. L. 102-240, 105 Stat.1914), 
TEA-21, and state-of-the-art practices in wetland science, technology, 
and management.

II. Public Participation

    An NPRM on this subject was published in the Federal Register on 
June 17, 1996 (61 FR 30553). The comment period was from June 17 
through August 16, 1996. Subsequently, an SNPRM was published in the 
Federal Register on June 18, 1997 (62 FR 33047). The comment period for 
this SNPRM was from June 18 through August 18, 1997.
    In its June 17, 1996, NPRM and June 18, 1997, SNPRM, the FHWA 
proposed to amend 23 CFR part 777, Mitigation of Impacts to Privately 
owned Wetlands, in order to update the current, out-dated regulations 
in light of changes brought about by the ISTEA. Specifically, the June 
17, 1996, NPRM proposed revision to the previous regulation (23 CFR 
part 777) to conform to ISTEA, thereby providing more flexibility to 
State Departments of Transportation (DOT) in determining eligibility of 
mitigation alternatives for Federal participation. The NPRM proposed 
broadening the scope of the regulation to encompass all wetland 
mitigation projects eligible for Federal participation, not just those 
involving privately owned wetlands. The June 18, 1997 SNPRM proposed to 
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). The rulemaking proposed also to make 
a technical amendment to the text of the June 17, 1996 NPRM.
    Recently, TEA-21 (Pub. L. 105-178, 112 Stat. 107) added funding 
eligibility under the NHS and STP programs for mitigation of impacts on 
natural habitats due to highway projects funded under title 23, U.S.C. 
This rulemaking would also include a provision requiring that existing 
wetland and habitat mitigation banks be given preference for use in 
establishing compensatory mitigation if the highway project impacts 
occur within the bank's service area (Sections 1106(b) and 1108(a) of 
TEA-21; 23 U.S.C. 103(b)(6)(M) and 133(b)(11). In this SNPRM, the FHWA 
would revise the current proposed regulation to conform to the 
authority of TEA-21.
    In addition to making changes to conform with TEA-21, this proposal 
would broaden the scope of the current regulation to encompass all 
mitigation projects for impacts to wetlands and natural habitats 
eligible for Federal participation, not just those involving privately 
owned wetlands. This SNPRM also applies to projects under the Federal 
Lands Highway Program, as described in Sec. 777.1, Purpose.
    With all this in mind, the FHWA has decided to issue this SNPRM, 
which would further amend part 777. At each place where the term 
``wetlands'' occurs in the regulatory text, this SNPRM proposes to add 
either the words ``natural habitat'' or ``habitat.'' In addition, 
Sec. 777.2, Definitions, would be amended to add a definition of the 
term ``natural habitat.'' Where negative impacts are unavoidable, the 
Department of Transportation's Fiscal Year 1999 and 2000 Performance 
Plans establish an objective to minimize the adverse impacts of 
projects on wetlands and to achieve a net gain of wetlands in the 
Federal-aid and Federal Lands Highway Programs. Thus, a new definition 
for ``net gain of wetlands'' would be added to Sec. 777.2.
    Section 777.9, Mitigation of Impacts, would be amended by adding a 
preference for existing wetlands banks or natural habitat banks to the 
provision authorizing the expenditure of Federal-aid highway funds for 
wetlands and natural habitat mitigation banking and related measures.
    Finally, the title of part 777 would be changed to read, 
``Mitigation of Impacts to Wetlands and Natural Habitat.'' The FHWA 
invites comments on this new proposal.

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 supplement the FHWA's NPRM 
proposing to amend its regulations regarding mitigation of impacts to 
privately owned wetlands, which have become outdated because of 
provisions in Sections 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. 
The recently enacted TEA-21 added the term ``natural habitat'' to the 
eligibility provisions of 23 U.S.C. 103 and 133, and added a preference 
for the use of established mitigation banks for wetland mitigation 
activities. This SNPRM would amend the NPRM to address these new 
    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

[[Page 16872]]

funded pursuant to title 23, U.S.C. 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 and June 18, 1997, SNPRM 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.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose a Federal mandate resulting in 
the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year (2 U.S.C. 1532).

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. 

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 
was 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, U.S.C. The passage of 
TEA-21, with its addition of the term ``natural habitat'' to the 
wetlands mitigation banking provisions of title 23, U.S.C., made this 
SNPRM necessary. Such impacts to wetlands and natural habitat 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, 
Natural habitat, Wetlands.

    Issued on: March 31, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to revise 23 
CFR part 777, as set forth below:
    1. Part 777 is revised to read as follows:


777.1  Purpose.
777.2  Definitions.
777.3  Background.
777.5  Federal participation.
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 and natural habitat 
resulting from Federal-aid projects funded pursuant to provisions of 
title 23, U.S.C. These policies and procedures shall be applied by the 
Federal Highway Administration (FHWA) to projects under the Federal 
Lands Highway Program to the extent such application is deemed 
appropriate by the FHWA.

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 restoration, 
enhancement, creation, and under exceptional circumstances, 
preservation, of wetlands, wetland buffer areas, and natural habitats, 
carried out to replace or compensate for the loss of wetlands or 
natural habitat area or functional capacity resulting from Federal-aid 
projects funded pursuant to provisions of title 23, U.S.C. Compensatory 
mitigation usually occurs in advance of or concurrent with the impacts 
to be mitigated, but may occur after such impacts in special 
    Ecologically desirable. A state or condition desired or wanted as 
the result of a mitigation agreement that provides additional wetland 
or natural habitat area or functional capacity.
    Natural habitat. A complex of natural, primarily native or 
indigenous vegetation, not subject to cultivation or current artificial 
landscaping, a primary purpose of which is to provide habitat for 
wildlife, either terrestrial or aquatic.

[[Page 16873]]

For purposes of this regulation, habitat has the same meaning as 
natural habitat.
    Net gain of wetlands. When project impacts are unavoidable, a 
wetland resource conservation and management principle under which, 
over the long term, losses of wetlands area of functional capacity due 
to highway projects are offset by gains at a ratio greater than 1:1, 
through restoration, enhancement, preservation, or creation of wetlands 
or associated areas critical to the protection or conservation of 
wetlands functions. This definition specifically excludes natural 
habitat, as defined in this section, other than wetlands.
    On-site, in-kind mitigation. Compensatory mitigation which replaces 
wetlands or natural habitat area or functions lost as a result of a 
highway project with the same or like wetland or habitat type and 
functions adjacent or contiguous to the site of the impacts.
    Service area of a mitigation bank. The service area of a wetland or 
natural habitat mitigation bank shall be consistent with that in the 
Federal Guidance for the Establishment, Use and Operation of Mitigation 
Banks,\1\ i.e., the designated area (e.g., watershed, county) wherein a 
bank can be expected to provide appropriate compensation for impacts to 
wetlands and/or other aquatic or natural habitat resources.

    \1\ This document is available from FHWA Headquarters, Resource 
Centers, and individual State Division Offices for inspection and 
copying as prescribed at 49 CFR Part 7.

    Wetland or habitat enhancement. Increasing the capacity of an 
altered or degraded site to perform specific functions by modifying the 
site conditions in or around the wetland or natural habitat. Examples 
include, but are not limited to, alteration of hydrologic regime, 
vegetation management, erosion control, fencing, pest control, and 
    Wetland or habitat establishment period. An agreed-upon period of 
time required to establish wetland functional capacity in a 
compensatory mitigation project sufficient to compensate wetlands or 
habitat losses due to impacts of Federal-aid highway projects. The 
establishment period may vary depending on the specific wetland or 
habitat type being developed.
    Wetland or habitat functional capacity. The ability of a wetland or 
natural habitat to perform natural functions, such as provide wildlife 
habitat, support biodiversity, store surface water, or perform 
biogeochemical transformations, as determined by scientific functional 
assessment. Natural functions of wetlands include, but are not limited 
to, those listed by the U.S. Army Corps of Engineers at 33 CFR 
320.4(b)(2)(I) through (viii).
    Wetland or habitat restoration. Reestablishment of wetlands or 
natural habitats on a site where they formerly existed but essentially 
have been eliminated.
    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 
    Wetlands and habitat banking and related measures. Efforts, or 
contributions to efforts, to restore, create, enhance, or, in 
exceptional circumstances, preserve wetlands, natural habitats, or 
functional capacity of these areas , usually undertaken in advance and 
outside the area of direct impacts of proposed Federal-aid highway 
projects and intended expressly to compensate for unavoidable wetlands 
or habitat losses caused by such projects, when compensation could not 
be achieved or would not be as environmentally beneficial if located at 
individual project impact sites.
    Wetlands or habitat mitigation credit. A unit of wetlands or 
habitat mitigation, defined either by:
    (1) Area or
    (2) A measure of functional capacity through application of 
scientific functional assessment.

Sec. 777.3  Background.

    (a) 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.
    (b) 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.
    (c) Sections 103 and 133 of title 23, U.S.C., identify additional 
approaches for mitigation and management of impacts to wetlands and 
natural habitats which result from projects funded pursuant to title 
23, U.S.C., as eligible for participation with Federal-aid highway 

Sec. 777.5  Federal participation.

    (a) Those measures which the FHWA and a State DOT find appropriate 
and necessary to mitigate adverse environmental impacts to wetlands and 
natural habitats are eligible for Federal participation where the 
impacts are the result of projects funded pursuant to title 23, U.S.C. 
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 title 23, U.S.C., funds for 
activities required for the planning, design, construction, and 
establishment of wetlands and natural habitat 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 and natural habitats, 
    (2) The extent of highway impacts on the wetlands and natural 
habitats, as determined through an appropriate, interdisciplinary, 
impact assessment.
    (b) Evaluation of the importance of the impacted wetlands and 
natural habitats should consider:
    (1) The wetlands' and natural habitat functional capacity;
    (2) Input from the appropriate resource management agencies through 
interagency coordination;
    (3) The relative importance of these functions to the total wetland 
or natural habitat resource of the area; and
    (4) Other factors such as uniqueness, esthetics, or cultural 
    (c) A determination of the highway impact should focus on both the 
short-and long-term effects of the project on wetland or natural 
habitat functional capacity, consistent with 40 CFR 1502.16.

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 or natural habitats. The following actions qualify for 
Federal-aid highway funding:
    (1) Where practicable, avoidance or minimization of impacts to 
wetlands or

[[Page 16874]]

natural habitats 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 part 230 et seq.), 
avoidance and then minimization must be given first consideration in 
mitigating wetlands impacts. These guidelines apply only to impacts to 
wetlands regulated under Section 404 of the Clean Water Act.
    (2) After practicable avoidance and minimization measures have been 
exhausted, other ecologically desirable compensatory mitigation 
alternatives, either inside or outside of the right-of-way. These may 
include such measures as on-site mitigation, when that alternative is 
determined to be ecologically desirable and practicable; improvement of 
existing degraded or historic wetlands or natural habitats through 
restoration or enhancement on or off site; creation of new wetlands 
from non-wetland areas off-site; and under exceptional circumstances, 
preservation of existing wetlands or natural habitats on or off site. 
Restoration of wetlands is generally preferable to enhancement or 
creation of new wetlands from non-wetland areas.
    (3) Improvements to existing wetlands or natural habitats. Such 
activities may include, but are not limited to, construction or 
modification of water level control structures or ditches, 
establishment of natural vegetation, recontouring of the site, 
installation or removal of irrigation or water distribution systems, 
pest control, installation of fencing, site monitoring, and other 
measures to protect, enhance, or restore the wetland or natural habitat 
character of the site.
    (4) Wetlands mitigation banking and related measures. With respect 
to participation in a natural habitat or wetland mitigation effort 
related to a project funded under this title that has an impact that 
occurs within the service area of a mitigation bank, preference shall 
be given, to the maximum extent practicable, to the use of the 
mitigation bank if the bank contains sufficient available credits to 
offset the impact and the bank is approved in accordance with the 
Federal Guidance for the Establishment, Use and Operation of Mitigation 
Banks \2\ or other applicable Federal law (including regulations).

    \2\ See footnote 1.

    (b) Participation in wetlands or natural habitat mitigation banks. 
If the development or acquisition of mitigation credits in wetland or 
natural habitat mitigation banks, either on or off-site, is determined 
to be the most ecologically desirable and practicable alternative for 
compensatory mitigation, banking alternatives eligible for 
participation with Federal-aid funds include such measures as the 
    (1) Multi-user wetlands or natural habitat banks established on 
publicly owned or controlled lands;
    (2) Single purpose publicly owned banks, established by and for the 
use of a State DOT 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 mitigation credits are 
purchased by State DOTs to mitigate wetlands or habitat impacts due to 
projects funded under title 23, U.S.C., including privately owned banks 
or those established with private funds to mitigate wetland or natural 
habitat losses which have been approved and/or permitted by the 
appropriate regulatory agency.
    (c) Contributions to statewide and regional efforts to conserve, 
restore, enhance and create wetlands or natural habitats. 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 (Pub. L. 101-
640). 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 impacts to 
wetlands or natural habitats should include consultation with 
appropriate State and Federal agencies.
    (b) Federal-aid funds may not participate in the replacement of 
wetlands or natural habitats absent sufficient assurances that the area 
will be maintained in the intended state as a wetland or natural 
    (c) The acquisition of proprietary interests in replacement 
wetlands or natural habitats as a mitigation measure may be in fee 
simple or by easement, as appropriate. The acquisition of ``mitigation 
credits'' in wetland or natural habitat 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 or natural habitat nature of the 
    (d) A State DOT 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) A State DOT may transfer the title to, or enter into an 
agreement with, an appropriate public natural resource management 
agency to manage lands acquired outside the right of way without 
requiring a credit to Federal funds. Any such transfer of title or 
agreement shall require the continued use of the lands for the purpose 
for which they were acquired. In the event the purpose is no longer 
served, the lands and interests therein shall immediately revert to the 
State DOT for proper disposition.
    (f) The reasonable costs of acquiring lands or interests therein to 
provide replacement lands with equivalent wetlands or natural habitat 
area or functional capacity associated with these areas are eligible 
for Federal participation.
    (g) The objective in mitigating impacts to wetlands in the Federal-
aid highway program is to implement the policy of a net gain of 
wetlands on a program wide basis, when project impacts are unavoidable.
    (h) Certain activities to ensure the viability of compensatory 
mitigation wetlands or natural habitats 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, replacement of plantings, and mitigation site 
monitoring. The establishment period should be specifically determined 
by the mitigation agreement among the mitigation planners prior to 
beginning any compensatory mitigation activities.

[FR Doc. 99-8444 Filed 4-6-99; 8:45 am]