Appendix 14: Federal Highway Administration

• Author: Nicholas C. Yost
• Pages: 275-290

Federal Highway Administration Regulations and Procedures (FHwA Part 771) Page 275

Federal Highway Administration

NEPA Regulations

23 CFR Pt 771

Part 771—Environmental Impact and

Related Procedures

Conten ts

§771.10 1 Purpo se.

§771.1 03 [Re served]

§771.1 05 Polic y.

§771.1 07 Def initions.

§771.1 09 App licability and respon sibilities .

§771.1 11 Ear ly co ordination, publ ic in volvement, and

projec t deve lopment.

§771.1 13 Timin g of Admin istration activ ities.

§771.1 15 Cla sses of ac tions.

§771.1 17 FHWA catego rical exclusion s.

§771.1 18 FTA categor ical exclusions

§771.1 19 Env ironmental asse ssments.

§771.1 21 Find ings of no sign ificant impact.

§771.1 23 Dra ft en vironmental impa ct st atements.

§771.1 25 Fina l env ironmental impac t sta tements.

§771.1 27 Rec ord of deci sion.

§771.1 29 Re- evaluations .

§771.1 30 Supp lemental enviro nmental impact

statem ents.

§771.1 31 Eme rgency action proced ures.

§771.1 33 Com pliance with other require ments.

§771.1 37 Int ernational acti ons.

§771.1 39 Lim itations on actions.

A : 42 U.S.C. 4321 et seq.; 23 U.S.C. 106,

109, 128, 138, 139, 315, 325, 326, and 327; 49 U.S.C.

303 and 5323(q); 40 CFR Parts 1500-1508; 49 CFR

1.81, 1.85, and 1.91; Pub. L. 109-59, 119 Stat. 1144,

sections 6002 and 6010; Pub. L. 112-141, 126 Stat.

405, sections 1315, 1316 and 1317.

[79 FR 2118, Jan. 13, 2014].

S: 52 FR 32660, Aug. 28, 1987, unless otherwise

noted.

§771.101 Purpose.

is regulat ion prescribes the policies a nd procedures

of the Federal Highway Ad ministration (FHWA) and

the Federal Transit Adminis tration (FTA) for imple-

menting the National Environmenta l Policy Act of

1969 as amended (NEPA), and supplements the NEPA

regulation of the Counci l on Environmental Quality

(CEQ), 40 CFR part s 1500 through 1508 (CEQ regu-

lation). Together these reg ulations set forth all FHWA,

FTA, and Department of Transport ation (DOT)

requirements under NEPA for the processing of hig h-

way and public transport ation projects. is reg ulation

also sets fort h procedures to comply with 23 U.S.C.

109(h), 128, 138, 139, 325, 326, 327, and 49 U.S.C.

303, 5301, and 5323.

[74 FR 12527, Mar. 24, 2009, as amended at 78 FR

8982, Feb. 7, 2013]

§771.103 [Reserved]

§771.105 Policy.

It is the policy of the Admi nistration that:

(a) To the fulles t extent possible, all environmental

investigations, rev iews, and consultations be coor-

dinated as a sing le process, and complia nce with all

applicable environmental requirements b e reected in

the environmental revie w document required by this

regulation.1

(b) Alternative courses of ac tion be evaluated and deci-

sions be made in the best overa ll public interest based

upon a balanced considerat ion of the need for safe and

ecient transportat ion; of the social, economic, a nd

environmental impacts of t he proposed transp ortation

improvement; and of national, State, and loca l envi-

ronmental protection goals.

(c) Public involvement and a systematic interdisciplin-

ary approach be esse ntial par ts of the development

process for proposed actions.

(d) Measures necessar y to mitigate adverse impacts be

incorporated into the action. Mea sures necessary to

mitigate adverse impact s are eligible for Federal fund-

ing when the Admin istration determines that:

(1) e impacts for which the mitigation is proposed

actually re sult from the Administration action; and

(2) e proposed mitigation represents a reasonable

public expenditure af ter considering the impacts of

the action and the benets of t he proposed mitigation

measures. In ma king this determination, the Adm inis-

tration will consider, among other fac tors, the extent to

which the proposed measu res would assist i n comply-

1. FHWA and FTA have supplementary guidance on environmental

documents and procedures for their programs. is guidance in-

cludes, but is not limited to: FHWA Technical Advisory T6640.8A,

October 30, 1987; “SAFETEA-LU Environmental Review Process:

Final Guidance,” November 15, 2006; Appendix A of 23 CFR

part 450, titled “Linking the Transportation Planning and NEPA

Processes”; and “Transit Noise and Vibration Impact Assessment,”

May 2006. e FHWA and FTA supplementary guidance, and any

updated versions of the guidance, are available from the respective

FHWA and FTA headquarters and eld oces as prescribed in 49

CFR part 7 and on their respective Web sites at http://www.fhwa.

dot.gov and http://www.fta.dot.gov, or in hard copy by request.

Page 276 NEPA Deskbook

ing with a Federal stat ute, Executive Order, or Admin-

istration regulat ion or policy.

(e) Costs incurred by the applicant for the prepar ation

of environmental documents requeste d by the Admin-

istration be eligible for Federa l assistance.

(f) No person, becaus e of handicap, age , race, color,

sex, or national origin, be exc luded from participat ing

in, or denied benets of, or be subject to discrimi na-

tion under any Admini stration program or procedural

activity require d by or developed pursuant to th is

regulation.

[52 FR 32660, Aug. 28, 1987; 53 FR 11065, Apr. 5,

1988, as amended at 70 FR 24469, May 9, 2005; 74

FR 12527, Mar. 24, 2009; 78 FR 8982, Feb. 7, 2013]

§771.107 Def‌initions.

e denitions contained in t he CEQ regulation and

in Titles 23 and 49 of the United States Code are

applicable. In addition, the following de nitions apply.

(a) Environmental studies. e invest igations of poten-

tial environmenta l impacts to determine the envi-

ronmental process to be followed a nd to assist in t he

preparation of the environmental doc ument.

(b) Action. A highway or tra nsit project proposed for

FHWA or FTA funding. It also includes ac tivities such

as joint and multiple use permits, ch anges in access

control, etc., which may or may not involve a commit-

ment of Federal funds.

(c) Administration action. e approval by FH WA or

FTA of the applicant’s request for Federal funds for

construction. It also i ncludes approval of activities such

as joint and multiple use permits, ch anges in access

control, etc., which may or may not involve a commit-

ment of Federal funds.

(d) Administration. e FHWA or FTA, whichever is

the designated Federal le ad agency for the proposed

action. A reference herein to the Adm inistration means

the FHWA, or FTA, or a State when the State is fu nc-

tioning as the FH WA or FTA in carrying out resp onsi-

bilities delegated or assig ned to the State in accordance

with 23 U.S.C. 325, 326, or 327, or other applicable

law. A reference herein to the FHWA or FTA means

the State when the State is fu nctioning as t he FHWA

or FTA respectively in ca rrying out responsibilities del-

egated or assigned to the Stat e in accordance with 23

U.S.C. 325, 326, or 327, or other applicable law. Noth-

ing in this de nition alters the scope of any delegation

or assignment made by FHWA or FTA.

(e) Section 4(f). Refers to 49 U.S.C. 303 and 23 U.S.C.

138.2

(f) Applicant. A ny State, local, or federally-recognized

Indian tribal g overnmental unit t hat requests funding

approval or other action by the Admi nistration and

that the Admin istration works with to conduct envi-

ronmental studies a nd prepare environmental re view

documents. When another Feder al agency, or the

Administr ation itself, is implementing the act ion, then

the lead agencies (as dened i n this regulation) may

assume the responsibil ities of the applicant in t his part.

If there is no applicant, then the Feder al lead agency

will assu me the responsibilities of t he applicant in thi s

part.

(g) Lead agenci es. e Administration and any other

agency designated to ser ve as a joint lead agency with

the Administ ration under 23 U.S.C. 139(c)(3) or under

the CEQ regulation.

(h) Participating agency. A Federa l, State, local, or

federally-recogniz ed Indian tribal governmental unit

that may have an interest in t he proposed project and

has accepted an i nvitation to be a part icipating agenc y,

or, in the case of a Federal agenc y, has not declined the

invitation in accordanc e with 23 U.S.C. 139(d)(3).

(i) Project sponsor. e Federal, State, loca l, or federally-

recognized Ind ian tribal governmental unit, or other

entity, including any private or public-private entity

that seeks an A dministration action.

[52 FR 32660, Aug. 28, 1987, as amended at 70 FR

24469, May 9, 2005; 74 FR 12527, Mar. 24, 2009; 78

FR 8982, Feb. 7, 2013]

§771.109 Applicability and responsibilities.

(a)(1) e provisions of this regulation a nd the CEQ

regulation apply to actions where t he Adminis tration

exercises sucient control to condition the perm it or

project approval. Actions take n by the applicant which

do not require Federal approvals, such a s preparation

of a regional transpor tation plan are not subject to this

regulation.

(2) is regulation does not apply to, or alter approvals

by the Administ ration made prior to the eective date

of this regulat ion.

2. Section 4(f), which protected certain public lands and all historic

sites, technically was repealed in 1983 when it was codied, without

substantive change, as 49 U.S.C. 303. is regulation continues

to refer to section 4(f) because it would create needless confusion

to do otherwise; the policies section 4(f) engendered are widely

referred to as “section 4(f)” matters. A provision with the same

meaning is found at 23 U.S.C. 138 and applies only to FHWA

actions.