DOT 23 CFR PART 777-2011 MITIGATION OF IMPACTS TO WETLANDS AND NATURAL HABITAT.pdf

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1、453 Federal Highway Administration, DOT 777.2 property in question and who are em-powered to represent the agency on matters related to the property. (3) In the case of portions of Wild and Scenic Rivers to which Section 4(f) ap-plies, the official(s) with jurisdiction are the official(s) of the Fed

2、eral agency or agencies that own or administer the affected portion of the river corridor in question. For State administered, fed-erally designated rivers (section 2(a)(ii) of the Wild and Scenic Rivers Act, 16 U.S.C. 1273(a)(ii), the officials with ju-risdiction include both the State agen-cy desi

3、gnated by the respective Gov-ernor and the Secretary of the Interior. ROD. Refers to a Record of Decision prepared pursuant to 40 CFR 1505.2 and 771.127 of this chapter. Section 4(f) evaluation. Refers to the documentation prepared to support the granting of a Section 4(f) approval under 774.3(a), u

4、nless preceded by the word programmatic. A pro-grammatic Section 4(f) evaluation is the documentation prepared pursuant to 774.3(d) that authorizes subsequent project-level Section 4(f) approvals as described therein. Section 4(f) Property. Section 4(f) property means publicly owned land of a public

5、 park, recreation area, or wild-life and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance. Use. Except as set forth in 774.11 and 774.13, a use of Section 4(f) prop-erty occurs: (1) When land is permanently incor-porate

6、d into a transportation facility; (2) When there is a temporary occu-pancy of land that is adverse in terms of the statutes preservation purpose as determined by the criteria in 774.13(d); or (3) When there is a constructive use of a Section 4(f) property as deter-mined by the criteria in 774.15. PA

7、RT 777MITIGATION OF IM-PACTS TO WETLANDS AND NAT-URAL HABITAT Sec. 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

8、), 103, 109(h), 133(b)(1), (b)(11), and (d)(2), 138, 315; E.O. 11990; DOT Order 5660.1A; 49 CFR 1.48(b). SOURCE: 65 FR 82924, Dec. 29, 2000, unless otherwise noted. 777.1 Purpose. To provide policy and procedures for the evaluation and mitigation of ad-verse environmental impacts to wet-lands and na

9、tural habitat resulting from Federal-aid projects funded pur-suant to provisions of title 23, U.S. Code. These policies and procedures shall be applied by the Federal High-way Administration (FHWA) to projects under the Federal Lands High-way Program to the extent such appli-cation is deemed appropr

10、iate by the FHWA. 777.2 Definitions. In addition to those contained in 23 U.S.C. 101(a), the following definitions shall apply as used in this part: Biogeochemical transformations means those changes in chemical compounds and substances which naturally occur in ecosystems. Examples are the car-bon,

11、nitrogen, and phosphorus cycles in nature, in which these elements are in-corporated from inorganic substances into organic matter and recycled on a continuing basis. Compensatory mitigation means res-toration, enhancement, creation, and under exceptional circumstances, pres-ervation, of wetlands, w

12、etland buffer areas, and other natural habitats, car-ried out to replace or compensate for the loss of wetlands or natural habitat area or functional capacity resulting from Federal-aid projects funded pur-suant to provisions of title 23, U.S. Code. Compensatory mitigation usu-ally occurs in advance

13、 of or concurrent with the impacts to be mitigated, but may occur after such impacts in spe-cial circumstances. Mitigation bank means a site where wetlands and/or other aquatic re-sources or natural habitats are re-stored, created, enhanced, or in excep-tional circumstances, preserved, ex-pressly fo

14、r the purpose of providing VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00463 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-454 23 CFR Ch. I (4111 Edition) 77

15、7.2 compensatory mitigation in advance of authorized impacts to similar re-sources. For purposes of the Clean Water Act, Section 404 (33 U.S.C. 1344), use of a mitigation bank can only be authorized when impacts are unavoid-able. Natural habitat means a complex of natural, primarily native or indige

16、nous vegetation, not currently subject to cultivation or artificial landscaping, a primary purpose of which is to provide habitat for wildlife, either terrestrial or aquatic. For purposes of this part, habitat has the same meaning as nat-ural habitat. This definition excludes rights-of-way that are

17、acquired with Federal transportation funds specifi-cally for highway purposes. Net gain of wetlands means a wetland resource conservation and management principle under which, over the long term, unavoidable losses of wetlands area or functional capacity due to highway projects are offset by gains a

18、t a ratio greater than 1:1, through res-toration, enhancement, preservation, or creation of wetlands or associated areas critical to the protection or con-servation of wetland functions. This definition specifically excludes natural habitat, as defined in this section, other than wetlands. On-site,

19、in-kind mitigation means com-pensatory 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 impact. Practicable means available and capa-ble

20、of being done after taking into con-sideration cost, existing technology, and logistics, in light of overall project purposes. Service area of a mitigation bank means that the service area of a wet-land or natural habitat mitigation bank shall be consistent with that in the Federal Guidance for the

21、Establish-ment, Use and Operation of Mitigation Banks (60 FR 58605, November 28, 1995), i.e., the designated area (e.g., water-shed, county) wherein a bank can be expected to provide appropriate com-pensation for impacts to wetlands and/ or other aquatic or natural habitat re-sources. Wetland or hab

22、itat enhancement means activities conducted in existing wet-lands or other natural habitat to achieve specific management objec-tives or provide conditions which pre-viously did not exist, and which in-crease one or more ecosystem func-tions. Enhancement may involve trade-offs between the resource s

23、tructure, function, and values; a positive change in one may result in negative effects to other functions. Examples of activities which may be carried out to enhance wetlands or natural habitats include, but are not limited to, alteration of hy-drologic regime, vegetation manage-ment, erosion contr

24、ol, fencing, inte-grated pest management and control, and fertilization. Wetland or habitat establishment period means a period of time agreed to by the FHWA, State DOT, and U.S. Army Corps of Engineers, as necessary to es-tablish wetland or natural habitat functional capacity in a compensatory miti

25、gation project sufficient to com-pensate 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 means the ability of a wetland or nat-ural h

26、abitat to perform natural func-tions, such as provide wildlife habitat, support biodiversity, store surface water, or perform biogeochemical transformations, as determined by sci-entific functional assessment. Natural functions of wetlands include, but are not limited to, those listed by the U.S. Ar

27、my Corps of Engineers at 33 CFR 320.4(b)(2)(i) through (viii). Wetland or habitat preservation means the protection of ecologically impor-tant wetlands, other aquatic resources, or other natural habitats in perpetuity through the implementation of appro-priate legal and physical mechanisms. Preserva

28、tion of wetlands for compen-satory mitigation purposes may in-clude protection of upland areas adja-cent to wetlands as necessary to ensure protection and/or enhancement of the aquatic ecosystem. VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00464 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223

29、076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-455 Federal Highway Administration, DOT 777.5 1DOT Order 5660.1A is available for inspec-tion and copying from FHWA headquarters and field offices as prescribed at 4

30、9 CFR part 7. Wetland or habitat restoration means the reestablishment of wetlands or nat-ural habitats on a site where they for-merly existed or exist in a substan-tially degraded state. Wetland or wetlands means those areas that are inundated or saturated by surface or ground water at a fre-quency

31、 and duration to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally in-clude swamps, marshes, bogs and simi-lar areas. Wetlands or habitat mitigation credit means a unit of wetlands or habita

32、t mitigation, defined either by area or a measure of functional capacity through application of scientific functional as-sessment. With respect to mitigation banks, this definition means the same as that in the Federal Guidance for the Establishment, Use, and Operation of Mitigation Banks. 777.3 Bac

33、kground. (a) Executive Order 11990 (42 FR 26961, 3 CFR, 1977 Comp., p. 121) Protection of Wetlands, and DOT Order 5660.1A,1Preservation of the Nations Wetlands, emphasize the important functions and values inherent in the Nations wet-lands. Federal agencies are directed to avoid new construction in

34、wetlands un-less the head of the agency determines that: (1) There is no practicable alter-native to such construction, and (2) The proposed action includes all practicable measures to minimize harm to wetlands which may result from such use. (b) Sections 103 and 133 of title 23, U.S. Code, identify

35、 additional ap-proaches for mitigation and manage-ment of impacts to wetlands and nat-ural habitats which result from projects funded pursuant to title 23, U.S. Code, as eligible for participation with title 23, U.S. Code, funds. (c) 33 CFR parts 320 through 330, Reg-ulatory Program, U.S. Army Corps

36、 of Engineers; Section 404, Clean Water Act and 40 CFR part 230, Section 404(b)(1) Guidelines for the Specifica-tion of Disposal Sites for Dredged or Fill Material, establish requirements for the permitting of discharge of dredge or fill material in wetlands and other waters of the United States. (d

37、) Federal Guidance for the Estab-lishment, Use, and Operation of Mitiga-tion Banks presents guidance for the use of ecological mitigation banks as compensatory mitigation in the Sec-tion 404 Regulatory Program for un-avoidable impacts to wetlands and other aquatic resources. (e) Interagency Cooperat

38、ionEndan-gered Species Act of 1973, as amended (50 CFR part 402), presents regulations establishing interagency consultation procedures relative to impacts to spe-cies listed under the authority of the Act and their habitats as required by Section 7, Interagency Coordination, of the Endangered Speci

39、es Act of 1973 (16 U.S.C. 1536). 777.5 Federal participation. (a) Those measures which the FHWA and a State DOT find appropriate and necessary to mitigate adverse environ-mental impacts to wetlands and nat-ural habitats are eligible for Federal participation where the impacts are the result of proje

40、cts funded pursuant to title 23, U.S. Code. The justification for the cost of proposed mitigation measures should be considered in the same context as any other public ex-penditure; that is, the proposed mitiga-tion represents a reasonable public ex-penditure when weighed against other social, econo

41、mic, and environmental values, and the benefit realized is com-mensurate with the proposed expendi-ture. 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, con-sistent with the limits set

42、 forth in this part, the expenditure of title 23, U.S. Code, funds for activities required for the planning, design, construction, monitoring, and establishment of wet-lands and natural habitat mitigation projects, and acquisition of land or in-terests therein. VerDate Mar2010 09:39 May 11, 2011 Jkt

43、 223076 PO 00000 Frm 00465 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-456 23 CFR Ch. I (4111 Edition) 777.7 777.7 Evaluation of impacts. (a) The reasonableness of the pu

44、blic expenditure and extent of Federal par-ticipation with title 23, U.S. Code, funds shall 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, interdis

45、ciplinary, impact assessment; and (3) Actions necessary to comply with the Clean Water Act, Section 404, the Endangered Species Act of 1973, and other relevant Federal statutes. (b) Evaluation of the importance of the impacted wetlands and natural habitats shall consider: (1) Wetland and natural hab

46、itat func-tional capacity; (2) Relative importance of these func-tions to the total wetland or natural habitat resource of the area; (3) Other factors such as uniqueness, esthetics, or cultural values; and (4) Input from the appropriate re-source management agencies through interagency coordination.

47、 (c) A determination of the highway impact should focus on both the short- and long-term affects of the project on wetland or natural habitat functional capacity, consistent with 40 CFR part 1500, 40 CFR 1502.16, 33 CFR 320.4, and the FHWAs environmental compliance regulations, found at 23 CFR part

48、771. 777.9 Mitigation of impacts. (a) Actions eligible for Federal fund-ing. There are a number of actions that can be taken to minimize the impact of highway projects on wetlands or nat-ural habitats. The following actions qualify for Federal-aid highway fund-ing: (1) Avoidance and minimization of

49、impacts to wetlands or natural habi-tats through realignment and special design, construction features, or other measures. (2) Compensatory mitigation alter-natives, either inside or outside of the right-of-way. This includes, but is not limited to, such measures as on-site mitigation, when that alternative is determined to be the preferred ap-proach by the appropriate regulatory agency; improvement of existing de-graded or historic wetlands or natural