Appendix 14: Federal Highway Administration

AuthorNicholas C. Yost
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
§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
(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. and, 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
[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.
(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
(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
(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

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