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Caltrans > SER > EH Vol 1 > Chapter 1 - Federal Requirements
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Last Updated: Monday, November 30, 2009 9:50 AM

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Chapter 1 - Federal Requirements

WHAT DOES THE TOPIC INCLUDE?

Chapter 1 sets forth the federal laws and regulations applicable to transportation projects; executive orders, policy, guidance, directives and advisories pertaining to the National Environmental Policy Act (NEPA) and related federal environmental laws; and agreements pertaining to NEPA and Section 4(f) compliance.  Agreements pertaining to other federal and state requirements may be found in specific topics in Volume 1, and in the MOUs/MOAs section.

The Federal Highway Administration uses the “umbrella” approach to compliance with the related federal laws in which all the laws, regulations, and executive orders are addressed as part of the NEPA documentation.  Refer to SER chapters 30, 31, 32, 33, and 37 for detailed information on preparing and processing NEPA documentation.

FEDERAL REQUIREMENTS DECISION TREE

Click image below to view larger or printable version

NEPA Process Overview for FHWA Actions (17KB)

LAWS, REGULATIONS AND GUIDANCE

General

Physical Environment

Natural Environment

Special Status Land Use

Community

Cultural Resources

Various Regulations, Policies, Guidance and Resources

Secondary and Cumulative Impacts

Section 4(f) Guidance Documents - See Also Technical Advisory T6640.8A and Chapter 20 - Section 4(f)

Miscellaneous

The FHWA ToolKit website provides a comprehensive collection of guidance papers on NEPA decision-making.

The FHWA Guidebook provides a comprehensive collection of information on issues related to NEPA, Section 4(f), and related laws and regulations.

AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978

Purpose : Protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.

Applicability: All projects which affect places of religious importance to Native Americans.

General Procedures: Consult with knowledgeable sources to identify and determine any effects on places of religious importance.  Comply with Section 106 procedures if the property is listed on or eligible for inclusion on the National Register of Historic Places.

Coordination and Consultation: Bureau of Indian Affairs, State Historic Preservation Officer, Native American Heritage Commission, Advisory Council on Historic Preservation (if appropriate).

Links: Text of codified law: 42 USC 1996 [PL 95-341] This link exits the SER website.

ACT FOR THE PRESERVATION OF AMERICAN ANTIQUITIES (1906)

Purpose: The Act provides for the protection of historic or prehistoric remains on federal lands; establishes criminal sanctions for unauthorized destruction or appropriation of antiquities; authorizes the President to declare by proclamation national monuments; and authorizes the scientific investigation of antiquities on federal lands, subject to permit and regulations.

Applicability: Historic or prehistoric remains on federal lands. Although there is no specific mention of natural or paleontological resources in the Act itself or in the Act’s uniform rules and regulations, “objects of antiquity” has been interpreted to include fossils by the National Park Service (NPS) and the Bureau of Land Management (BLM). 

General Procedures:

  1. Notify Department of Interior (DOI - National Park Service) when a federal project may result in the loss or destruction of a historic or archaeological property.
  2. DOI and/or FHWA may undertake survey or data recovery.

Coordination and Consultation: Department of Interior (National Park Service) Departmental Consulting Archaeologist, State Historic Preservation Officer

Links:

ARCHAEOLOGICAL AND HISTORICAL PRESERVATION ACT OF 1974

Purpose: The Act amended the 1960 Reservoir Salvage Act to include any federally assisted construction project that threatens the loss or destruction of significant scientific, historic or archaeological data and requires that the agency notify the Secretary of the Interior of the threat.  This Act is also called the Moss-Bennett Act.  The law provides for the use of up to 1 percent of project funds for survey and mitigation. The federal agency may undertake the survey or recovery of data, or it may request the Secretary of the Interior to do so.  If the agency itself undertakes the survey and recovery, it must provide the Secretary of the Interior with a report. 

Applicability: All federal agencies.

General Procedures: The FHWA historic preservation procedures under the National Historic Preservation Act (Section 106) provides similar protection, so Moss-Bennett is not applied on FHWA projects.

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ARCHAEOLOGICAL RESOURCES PROTECTION ACT OF 1979

Purpose: This act preserves and protects archaeological, historic and paleontological resources and requires the issuance of permits in order to excavate or remove any archaeological or paleontological resources from federal lands and tribal lands.  Unauthorized activities are punishable by fine, imprisonment, or both.

Applicability: Federal and Indian lands, including the National Park system, the National Wildlife Refuge system, and the National Forest system.

General Procedures: Project proponents must apply to the federal land manager for a permit to excavate or remove archaeological resources or carry out activities associated with excavation or removal.

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CLEAN AIR ACT AMENDMENTS OF 1990

Purpose: Authorizes the U.S. Environmental Protection Agency to establish National Ambient Air Quality Standards (NAAQS) to protect public health and the environment. The Act was amended in 1977 and 1990 to set new goals and meet unaddressed problems. The 1990 amendments also significantly strengthened "conformity" requirements for Federal actions including transportation projects and funding.

Applicability: All emissions from area, stationary, and mobile sources.

General Procedures: Development of State Implementation Plans (SIPs) to meet the NAAQS.

Coordination and Consultation: MPOs, EPA and California Air Resources Board.

Links:

  • Text of codified law: Clean Air Act (42 U.S.C. Chapter 85) table of contents This link exits the SER website.
  • Clean Air Act Conformity requirements: 42 USC 7506  This link exits the SER website.
  • Sanctions for non-compliance with Clean Air Act requirements: 42 USC 7509 This link exits the SER website.
  • EPA Conformity Regulations (1997 Amendments are current with minor modifications in 1999, 2000; Federal Register version including preamble): 40 CFR 93 This link exits the SER website.
  • Requirements for Preparation, Adoption, and Submittal of Implementation Plans:  40 CFR 51 This link exits the SER website.
  • Determining Conformity of Federal Actions to State or Federal Implementation Plans; Excerpts: Section 93.113.d (Timely Implementation of TCMs, 93.123 (Hot-Spot Analysis), 93.126 (Exempt Projects), 93.127 (Projects Exempt from Regional emissions Analyses), 93.128 (Traffic Signals Synchronization Projects): 40 CFR 93 This link exits the SER website.; PDF (121 KB)

CLEAN WATER ACT OF 1977 & 1987

Purpose: Restore and maintain the chemical, physical, and biological integrity of the Nation's waters through prevention and elimination of pollution.

Applicability: Any discharge of a pollutant into waters of the United States.

General Procedures:

  1. Obtain Section 404 permit for dredge or fill materials from Army Corps of Engineers.
  2. Permits (National Pollutant Discharge Elimination System [NPDES] permit) for all other discharges are obtained from EPA or appropriate state agency, which in most cases is the appropriate Regional Water Quality Control Board. (Section 402)
  3. Water quality certification is required from the appropriate Regional Water Quality Control Board (Section 401).
  4. All projects must be consistent with the state Non-point Source Pollution Management Program (Section 319).

Section 401:

Section 401 of the Clean Water Act (CWA) requires a water quality certification from the State Board or Regional Board when a project, 1) requires a Federal license or permit (a Section 404 permit is the most common federal permit for Caltrans projects), and 2) will result in a discharge to waters of the United States.  Such certification may be conditioned. Project activities that typically result in a discharge subject to Section 401 water quality certification are the construction and subsequent operation of a facility.

The State Water Resources Control Board revised State regulations This link exits the SER website. for the 401 Water Quality Certification Program; these revisions went into effect on June 24, 2000. The likelihood of a passive waiver has been reduced by the revised regulations that certification must be issued or denied before any federal deadline. 

Section 401 certifications are governed specifically by 33 USC 1341 and  40 CFR 121. This link exits the SER website.

Section 402:

This section of the Act establishes a permitting system for the discharge of any pollutant (except dredge or fill material) into waters of the United States.  A National Pollutant Discharge Elimination System (NPDES) permit is required for all point discharges of pollutants to surface waters. A point source is a discernible, confined, and discrete conveyance, such as a pipe, ditch or channel.

Section 402 is governed by 33 USC 1342  and 40 CFR 122. This link exits the SER website.

Section 404:

Section 404 of the Clean Water Act establishes a permit program administered by the Army Corps of Engineers (ACOE) regulating the discharge of dredged or fill material into waters of the United States (including wetlands). The Section 404(b)(1) guidelines allow the discharge of dredged or fill material into the aquatic system only if there is no practicable alternative which would have less adverse impacts.

Also see the NEPA/404 Integration MOU (2006) (281KB)

Coordination and Consultation:  Army Corps of Engineers, Environmental Protection Agency, State Water  Resources Control Board, Regional Water Quality Control Boards.

The Clean Water Act amended the federal Water Pollution Control Act of 1972.

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COASTAL ZONE MANAGEMENT ACT OF 1972

Purpose: Preserve, protect, develop, and (where possible), restore and enhance resources of the coastal zone.

Applicability: All projects significantly affecting areas under the control of the State Coastal Zone Management Agency (CZMA). 

General Procedures:  A determination of consistency with the approved Coastal Zone Management Plan (CZMP) is required from the state before federal approval can be granted.  In California, this determination is made by either the State Coastal Commission, a local government having an approved local Coastal Plan, or the San Francisco Bay Conservation and Development Commission (BCDC).

Coordination and Consultation: State Coastal Commission, BCDC, local agency, Environmental Protection Agency,  National Oceanic and Atmospheric Administration

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COASTAL ZONE MANAGEMENT ACT REAUTHORIZATION AMENDMENTS OF 1990

Purpose: Manage non-point source pollution from activities located in coastal zones.

Applicability: All development activities located in coastal zone areas are subject to non-point source control measures developed by the State Coastal Commission, a local government with an approved Coastal Zone Management Plan (CZMP), or the Bay Conservation and Development Commission (BCDC).

General Procedures: Ensure projects comply with Coastal Zone Management Plans for controlling non-point sources.

Coordination and Consultation:  State Coastal Commission, local government administering an approved CZMP, BCDC, National Oceanic and Atmospheric Administration, Environmental Protection Agency.

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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980, as amended (CERCLA)

Purpose: The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, pronounced SIR-cla) provides a Federal “Superfund” to clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment. Through the Act, EPA was given power to seek out those parties responsible for any release and assure their cooperation in the cleanup.

EPA cleans up orphan sites when potentially responsible parties cannot be identified or located, or when they fail to act. Through various enforcement tools, EPA obtains private party cleanup through orders, consent decrees, and other small party settlements. EPA also recovers costs from financially viable individuals and companies once a response action has been completed.

EPA is authorized to implement the Act in all 50 states and U.S. territories. Superfund site identification, monitoring, and response activities in states are coordinated through the state environmental protection or waste management agencies.

Applicability:  Any project that might take right-of-way containing a hazardous substance.

General Procedures: This act regulates the handling of hazardous waste sites.  During early planning, the location of permitted and non-regulated hazardous waste sites should be identified.  Early coordination with the Environmental Protection Agency (EPA) or California Environmental Protection Agency will aid in identifying known or potential hazardous waste sites.

Coordination and Consultation: EPA or Department of Toxic Substances Control.

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COUNCIL ON ENVIRONMENTAL QUALITY REGULATIONS, 40 CFR Part 1500

The Council on Environmental Quality (CEQ) was created by the National Environmental Policy Act of 1969 to oversee federal agencies’ compliance with NEPA.   Each federal agency is required to promulgate its own regulations to comply with NEPA which must be consistent with the CEQ’s regulations.

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DEPARTMENT OF TRANSPORTATION ACT OF 1966, SECTION 4(f)

Purpose: Preserve publicly owned public parklands, recreation areas, waterfowl and wildlife refuges, and significant historic sites.

Applicability: Whenever a US Department of Transportation action involves the "use" of  significant publicly-owned public (open to the public) parklands, recreation areas, wildlife and waterfowl refuges, and all significant historic sites.

General Procedures:

A specific finding is required. Section 4(f) lands land may be used for Federal Aid highways only if:

  1. There is no prudent and feasible alternative to using that land; and
  2. The program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.

Each project proposal must include a Section 4(f) avoidance alternative.

Coordination and Consultation: Department of the Interior, Department of Agriculture, Housing and Urban Development, state or local agencies having jurisdiction over the resources, and the State Historic Preservation Officer for historic sites.

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EMERGENCY WETLANDS RESOURCES ACT OF 1986

Purpose: To promote the conservation of wetlands in the United States in order to maintain the public benefits they provide.

Applicability: All projects which may impact wetlands.

General Procedures:

  1. Preparation of a national wetlands priority conservation plan which provides priority with respect to federal and state acquisition. 
  2. Provide direction for the national wetlands inventory.

There are no regulations implementing this law.

Coordination and Consultation: US Fish and Wildlife Service

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ENDANGERED SPECIES ACT OF 1973

Purpose:  Conserve species of fish, wildlife and plants facing extinction.

Applicability: Any action that is likely to jeopardize continued existence of such endangered or threatened species or result in destruction or modification of critical habitat.

General Procedures: This act and subsequent amendments provide for the conservation of endangered and threatened species and the ecosystems upon which they depend.  Section 7 of the act requires federal agencies, in consultation with and with the assistance of the Secretary of the Interior or of Commerce, as appropriate, to insure that actions they authorize, fund or carry out are not likely to jeopardize the continued existence of threatened or endangered species or result in the destruction or adverse modification of critical habitat for these species.  The U.S. Fish and Wildlife Service (USFWS) and NOAA-Fisheries share responsibilities for administering the Act.

Coordination and Consultation: USFWS, NOAA-Fisheries

The Endangered Species Act of 1973 (16 USC 1531-1543) This link exits the SER website. and subsequent amendments provide guidance for the conservation of endangered and threatened species and the ecosystems upon which they depend.

  • Section 7 requires federal agencies, in consultation with, and with the assistance of the Secretary of the Interior or the Secretary of Commerce, as appropriate, to insure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of threatened or endangered species or result in the destruction or adverse modification of critical habitat for these species.  The U. S. Fish and Wildlife Service (USFWS) and NOAA-Fisheries share responsibilities for administering the Act.  Regulations governing interagency cooperation under Section 7 are found at 50 CFR Part 402.  This link exits the SER website. The opinion issued at the conclusion of consultation will include a statement authorizing take that may occur incidental to an otherwise legal activity.
  • Section 9 lists those actions that are prohibited under the Act. Take of a species listed in accordance with the Act is prohibited.  There are two processes whereby take is allowed when it is incidental to an otherwise legal activity.
  • Section 10 provides a means whereby a non-federal action with a potential to result in the take of a listed species could be allowed under an incidental take permit.  Application procedures are found at 50 CFR Parts 13 and 17 This link exits the SER website. for species under the jurisdiction of FWS and 50 CFR Parts 217, 220 and 222 This link exits the SER website. for species under the jurisdiction of NOAA-Fisheries.

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EXECUTIVE ORDER 11593 PROTECTION AND ENHANCEMENT OF CULTURAL ENVIRONMENT (1971)

Purpose: This order requires Federal agencies to take a leadership role in preservation by surveying all lands under their ownership or control and nominating to the National Register of Historic Places all properties which appear to qualify. It also requires agencies to avoid inadvertently destroying such properties prior to completing their inventories.

Applicability: Codified as part of the 1980 amendments to the National Historic Preservation Act.

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 EXECUTIVE ORDER 11988 FLOODPLAIN MANAGEMENT (May 24, 1977)

Purpose: This order directs all federal agencies to avoid the long-and short-term adverse impacts associated with the modification of floodplains and to avoid direct or indirect support of floodplain development wherever there is a practicable alternative and to restore and preserve the natural and beneficial values served by floodplains.

Applicability: All construction of federal or federally-aided buildings, structures, roads, or facilities which encroach upon or affect the base floodplain.

General Procedures:

  1. Assessment of floodplain hazards.
  2. Specific finding required in final environmental document for significant encroachments.

Coordination and Consultation: Federal Emergency Management Agency, state and local agencies

Links:

  • Text of codified law: Executive Order 11988 (26 KB)
  • Regulations: 23 CFR 650, Subpart A This link exits the SER website.
  • Refer to DOT Order 5650.2 - Floodplain Management and Protection (not available on-line)

EXECUTIVE ORDER 11990 PROTECTION OF WETLANDS (May 24, 1977). 

Purpose: This order establishes a national policy to avoid adverse impacts on wetlands wherever there is a practicable alternative.

Applicability: Federally undertaken, financed, or assisted construction, and improvements in or with significant impacts on wetlands.

General Procedures: The federal Department of Transportation promulgated DOT Order 5660.1A in 1978 to comply with this direction.  On federally funded projects, impacts on wetlands must be identified in the environmental document.  Alternatives which avoid wetlands must be considered.  If wetlands impacts cannot by avoided, then all practicable measures to minimize harm must be included.  This must be documented in a specific “Wetlands Only Practicable Alternative Finding” in the Final Environmental Document.  An additional requirement is the opportunity for early public involvement in projects affecting wetlands.  The Federal Highway Administration provides technical assistance in meeting these criteria and reviews environmental documents for compliance.

Coordination and Consultation: U.S. Fish and Wildlife Service, Environmental Protection Agency, Army Corps of Engineers, NOAA-Fisheries, Natural Resources Conservation Service, state agencies.

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EXECUTIVE ORDER 12898 ENVIRONMENTAL JUSTICE (FEBRUARY 11, 1994)

Purpose: EO 12898 directs each federal agency to develop a strategy to address environmental justice concerns in its programs, policies and regulations. The intent of the order is to avoid disproportionately high and adverse impacts on minority and low-income populations with respect to human health and the environment. 

Applicability: All federal programs and projects.

General Procedures: Set forth in FHWA Order 6640.23.

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EXECUTIVE ORDER 12962 - RECREATIONAL FISHERIES

Purpose: This order directs that federal agencies shall, to the extent permitted by law and where practicable, improve the quantity, function, sustainable productivity, and distribution of U.S. aquatic resources for increased recreational fishing opportunities. This executive order requires evaluation and documentation of the effects caused by federally funded, permitted, or authorized actions on aquatic systems, fishing access, and recreational fisheries.

Applicability: All federal agencies

General Procedures: Provisions of this Executive Order are implemented through the NEPA process.

Coordination and Consultation: FHWA

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EXECUTIVE ORDER 13007 - INDIAN SACRED SITES

Purpose: Within certain limitations, the order requires federal land-managing agencies to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners, avoid adversely impacting the physical integrity of such sites.

Applicability: All federal land-managing agencies. The order primarily would affect Caltrans and local agencies when dealing with federal land-managing agencies such as the US Forest Service, BLM, etc.

General Procedures: Adherence to Executive memorandum of April 29, 1994, "Government-to- Government Relations with Native American Tribal Governments."

Coordination and Consultation: Federal land-managing agencies, federally recognized tribes.

Links:

Text of Executive Order 13007 (May 1996)

EXECUTIVE ORDER 13112 - INVASIVE SPECIES

Purpose: This order is intended to prevent the introduction of invasive species and provide for their control and to minimize the economic, ecological, and human health impacts that invasive species cause.  Signed February 3, 1999. Revokes EO 11987, May 24, 1977. The order directs federal agencies to expand and coordinate their efforts to combat the introduction and spread of plants and animals not native to the United States.

Applicability: All federal agencies whose actions may affect the status of invasive species.

General Procedures: Set forth in the Order. Under the E.O. Federal agencies cannot authorize, fund, or carry out actions that they believe are likely to cause or promote the introduction or spread of invasive species in the United States or elsewhere unless all reasonable measures to minimize risk of harm have been analyzed and considered. Federal-Aid and Federal Highway Program funds cannot be used for construction, revegetation, or landscaping activities that purposely include the use of known invasive species.

Determinations of the likelihood of introducing or spreading invasive species and a description of measures being taken to minimize their potential harm should be part of any process conducted to fulfill agency responsibilities under NEPA. Considerations of invasive species should occur during all phases of the environmental process to fulfill the requirements of NEPA. Until the National Vegetation Management Plan specified in the E.O. is completed, NEPA analyses should rely on each State’s noxious weed list to define the invasive plants that must be addressed and the measures to be implemented to minimize their harm.

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EXECUTIVE ORDER 13166 - IMPROVING ACCESS TO SERVICES FOR PERSONS WITH LIMITED ENGLISH PROFICIENCY

Purpose: To ensure that federal agencies' programs and activities are accessible to persons with limited English proficiency pursuant to Title VI of the Civil Rights Act of 1964, as amended prohibiting discrimination based on national origin.

Applicablility: All federal agencies and recipients of federal funds, including all federal DOT administrations, State DOTs, MPOs, transit operators, among others.

General Procedures: Use the USDOT Guidance (below), SER Volume 4, and Caltrans Project Development Procedures Manual - Chapter 11 “Public Hearing”.

Coordination and Consultation: FHWA

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EXECUTIVE ORDER 13186 - MIGRATORY BIRDS

Purpose: Executive Order 13186 directs departments and agencies to take certain actions to further implement the Migratory Bird Treaty Act (MBTA). Specifically, the Order directs Federal agencies, whose direct activities will likely result in the take of migratory birds, to develop and implement a Memorandum of Understanding (MOU) with the USFWS that shall promote the conservation of bird populations.

Applicability: All federal agency actions. Federal-aid highway projects that are likely to result in take of birds protected under the MBTA will require the issuance of take permits from the local USFWS jurisdiction. The Order should not affect Federal-aid projects because actions delegated to or assumed by nonfederal entities, or carried out by nonfederal entities with Federal assistance, are not subject to the Order, although such actions continue to be subject to the Migratory Bird Treaty Act itself. However, FHWA anticipates an MOU would be required under the Order for projects under the Federal Lands Highway Program.

General Procedures: FHWA Guidance on EO 13186

Coordination and Consultation: USFWS

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EXECUTIVE ORDER 13287 - PRESERVE AMERICA

Purpose: To enhance the use of historic properties owned by the federal government by encouraging public/private partnerships.

Applicablility: The order is applicable to all federal agencies. It would have likely have limited effect on Caltrans projects because few historic properties affected by Caltrans projects are owned by a federal agency.

Coordination and Consultation: Federal agencies

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FARMLAND PROTECTION POLICY ACT OF 1981

Purpose: Minimize impacts on farmland and maximize compatibility with state and local farmland programs and policy. 

Applicability: All projects that take right-of-way in farmland, as defined by the regulation.

General Procedures: This act requires that before taking or approving any federal action that would result in conversion of farmland, the agency must examine the effects of the action using the criteria set forth in the Act, and, if there are adverse effects, must consider alternatives to lessen them.

  1. Early coordination with the Natural Resources Conservation Service.
  2. Land evaluation and site assessment.
  3. Determination of whether to proceed with farmland conversion, based on severity of impacts and other environmental considerations.

Coordination and Consultation: Natural Resources Conservation Service

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FEDERAL - AID HIGHWAY ACT SECTION 109 (h)

Purpose:  Assures that possible adverse, economic, social, and environmental effects of proposed highway projects and project locations are fully considered and that final decisions on highway projects are made in the best overall public interest.

Applicability: Planning and development of proposed projects on any Federal-aid system for which the FHWA approves the plans, specifications, and estimates (PS&E) or has the responsibility for approving a program.

General Procedures: Identification of economic, social, and environmental effects; consideration of alternative courses of action; involvement of other agencies and the public; systematic interdisciplinary approach.  The report required by Section 128 on the consideration given to social, economic, and environmental (SEE) impacts may be the NEPA compliance document.

Coordination and Consultation: Appropriate federal, state, and local agencies and the public.

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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT

Purpose:  Control the application of pesticides to provide greater protection to man and the environment.

Applicability: All activities which necessitate use of restricted pesticides. Applicable to roadside maintenance activities.

General Procedures: Using or supervising “restricted use” pesticides will require certification.

Coordination and Consultation: EPA

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FEDERAL LAND POLICY AND MANAGEMENT ACT (FLPMA) OF 1976

This law provides authority for Bureau of Land Management (BLM) to regulate lands under its jurisdiction.  Scientific paleontological collecting permits are granted based on the provisions of the Antiquities Act and FLPMA.

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FISH AND WILDLIFE COORDINATION ACT OF 1934, AS AMENDED

Purpose: Conservation, maintenance, and management of wildlife resources.

Applicability: This act applies to any federal project where the waters of any stream or other body of water are impounded, diverted, deepened or otherwise modified. 

General Procedures: Project proponents are required to consult with the U.S. Fish and Wildlife Service (USFWS) and the appropriate state wildlife agency.  Reports and recommendations prepared by these agencies document project effects on wildlife and identify measures that may be adopted to prevent loss or damage to wildlife resources.  The term “wildlife” includes both animals and plants.  Provisions of the Act are implemented through the NEPA process and Section 404 permit process.

Coordination and Consultation: USFWS, Department of Fish and Game

Links:

  • Text of statute: 16 USC 661-666 (click on "next" to go to next section.) This link exits the SER website.

FLOOD DISASTER PROTECTION ACT

Purpose: Identify flood-prone areas and provide insurance.  Requires purchase of insurance for buildings in special flood-hazard areas.

Applicability: Any federally assisted acquisition or construction project in an area identified as having special flood hazards.

General Procedures:  Avoid construction in, or design to be consistent with, Federal Emergency Management Agency (FEMA)-identified flood-hazard areas.

Coordination and Consultation: FEMA, state, and local agencies.

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FREEDOM OF INFORMATION ACT (5 U.S.C. 552)

Purpose: The Freedom of Information Act (FOIA) establishes a presumption that records in the possession of agencies and departments of the Executive Branch of the U.S. Government are available to the public. The FOIA sets standards for determining when Government records must be made available, which records may be withheld, and gives requesters specific legal rights and provides administrative and judicial remedies when access to records or portions of records is denied.

Applicability: The FOIA requires that Federal agencies provide access to and disclosure of information pertaining to the Government's business to the fullest extent possible.

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HISTORIC BRIDGES, SURFACE TRANSPORTATION AND UNIFORM RELOCATION ACT OF 1987, SECTION 123(f)

Purpose: Complete an inventory of on- and off- system bridges to determine their historic significance.  Encourage the rehabilitation, reuse, and preservation of historic bridges.

Applicability: Any bridge that is listed on, or eligible for listing on, the National Register of Historic Places.

General Procedures: 

  1. Identify historic bridges on and off system
  2. Seek to preserve of reduce impact to historic bridges
  3. Seek a recipient prior to demolition

Coordination and Consultation:  State Historic Preservation Officer. Caltrans updated the original (1986) California Historic Bridge Inventory in 2006. The Inventory is not yet available on-line. Please contact the Caltrans district Heritage Resources Coordinator, District Local Assistance Engineer, or Caltrans HQ Cultural and Community Studies Office for information on the Inventory.

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  • Text of statute: 23 USC 144(o) (PL 100-17), scroll to subsection “o” This link exits the SER website.

HISTORIC SITES AND BUILDINGS ACT OF 1935

Purpose: This act authorized the Historic American Buildings Survey and the Historic American Engineering Record and the National Survey of Historic Sites; authorized the establishment of national historic sites and designation of national historic landmarks; and authorized interagency, intergovernmental, and interdisciplinary efforts for the preservation of cultural resources.

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INTERMODAL SURFACE TRANSPORTATION EFFICIENCY ACT (ISTEA) OF 1991

The Intermodal Surface Transportation Efficiency Act of 1991 provided authorizations for highways, highway safety, and mass transit for the next six years (1992-1997). Many of the provisions originated in ISTEA have been continued or expanded in subsequent surface transportation legislation - the Transportation Efficiency Act for the 21st Century (TEA-21) and Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).

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LAND AND WATER CONSERVATION FUND ACT OF 1964, AS AMENDED (Section 6(f)

Purpose:  Preserve, develop, and assure the quality and quantity of outdoor recreation resources for present and future generations.

Applicability: All projects which impact recreational lands purchased or improved with land and water conservation funds.  This Act provides funding to preserve and develop recreational lands. 

General Procedures: The Secretary of the Interior must approve any conversion of property acquired or developed with Section 6(f) assistance to a use other than public, outdoor recreational use.

Coordination and Consultation: Department of the Interior (National Park Service), State agencies.

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MARINE MAMMAL PROTECTION ACT OF 1972, AS AMENDED

Purpose: The Marine Mammal Protection Act (MMPA) generally prohibits "take" of marine mammals in U.S. waters by any person and by U.S. citizens in international waters and on the importing of marine mammals and marine mammal products into the United States. NOAA Fisheries can authorize take for the certain activities.

Applicability: All marine mammals are protected under this act.

General Procedures: Apply for Incidental Harassment Authorization if the project could result in a "take" of any marine mammal. The definition of "take" is the same as in the Endangered Species Act (ESA). The 1994 amendments to the MMPA define "harassment levels." Early consultation with the NOAA Fisheries should occur to identify impacts and mitigation commitments in the NEPA document. Some marine mammals are listed under the Endangered Species Act. When the ESA and the MMPA both apply, the MMPA compliance is integrated into the ESA Section 7 consultation.

Coordination and Consultation: NOAA Fisheries. Note that permit requirements changed in October 2006 and can be found at NOAA Fisheries Office of Protected Resources Permits.

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MARINE PROTECTION, RESEARCH AND SANCTUARIES ACT OF 1972

Purpose: Regulate dumping of material into United States' ocean waters. Title III of Marine Protection, Research and Sancturaries Act of 1972 (MPRSA) authorizes the Secretary of Commerce to designate certain areas as National Marine Sanctuaries after consulting with the heads of interested federal agencies and state and local governments, as appropriate. Sanctuaries may be designated anywhere in the marine environment, which Title III defines as:  those areas of coastal and ocean waters, the Great Lakes and their connecting waters, and submerged lands over which the United States exercises jurisdiction, consistent with international law.

Applicability: Any transportation to and dumping into the open sea.

General Procedures: Apply for permit.  A National Pollutant Discharge Elimination System (NPDES) permit cannot be granted if proposed discharge of water would violate Title III of this Act.

There are no regulations specifically governing this law.  The permits referred to above are Clean Water Act NPDES and Section 404 permits. 

Coordination and Consultation: EPA, Army Corps of Engineers (if dredge material)

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MIGRATORY BIRD TREATY ACT OF 1918, AS AMENDED

This law implements various treaties between the United States and Canada, Mexico, former Soviet Union, and Japan protecting migratory birds by making it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill said species. The law applies to the removal of nests (such as swallow nests on bridges) occupied by migratory birds during the breeding season.

Coordination and Consultation: USFWS enforces this act.

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NATIONAL ENVIRONMENTAL POLICY ACT OF 1969,  as amended

Purpose: NEPA requires all federal agencies to consider environmental factors through a systematic interdisciplinary approach before committing to a course of action.  The NEPA process is an overall framework for the environmental evaluation of federal actions.

The following quotation from NEPA describes the heart of the law.

"The Congress … declares that it is the continuing policy of the federal Government … to use all practicable means and measures, including financial and technical assistance … to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. " (42 U.S.C. 4331)

Applicability: All FHWA actions.

General Procedures: Set forth in CEQ Regulations and 23 CFR 771 (see links below)

Coordination and Consultation: Appropriate federal, state, and local agencies and the public.

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NATIONAL HISTORIC PRESERVATION ACT OF 1966, AS AMENDED - SECTION 106

Purpose: This act declares a national policy of historic preservation to protect, rehabilitate, restore, and reuse districts, sites, buildings, structures, and objects significant in American architecture, history, archaeology and culture. Section 106 mandates that federal agencies take into account the effect of an undertaking on a property which is included in, or eligible for inclusion in, the National Register of Historic Places.  The NHPA establishes the National Register of Historic Places, State Historic Preservation Offices and programs, and the Advisory Council on Historic Preservation (ACHP).

Applicability:  All properties on or eligible for inclusion on the National Register of Historic Places.

General Procedures:

  1. Identify and determine the effects of project on subject properties.
  2. Afford the Advisory Council on Historic Preservation (ACHP) an early opportunity to comment in accordance with 36 CFR 800.
  3. Avoid or mitigate adverse effects to the greatest extent possible.

Coordination and Consultation: State Historic Preservation Officer, Native American Tribes, ACHP, National Park Service

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NATIONAL TRAILS SYSTEM ACT

Purpose: Provide for outdoor recreation needs and encourage outdoor recreation.

Applicability: This act applies to projects affecting national scenic or historic trails designated by Congress and the lands through which such trails pass.  

General Procedures:

  1. Apply for right-of-way easement from the Secretary of Interior or Agriculture, as appropriate.
  2. Ensure that potential trail properties are made available for use as recreational and scenic trails.

Coordination and Consultation: National Park Service, USFS, other federal land management agencies may apply for designation.

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NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT OF 1990

Purpose: Protect human remains and cultural material of Native American and Hawaiian groups.

Applicability: Actions on federal and Tribal lands.

General Procedures: Consult with appropriate Native American group.

This act and regulations develop a systematic process for determining the rights of Indian tribes to certain Native American human remains and cultural items to which they are affiliated, when such remains and items are in the possession or control of an institution or state or local government receiving federal funds and were collected prior to November 16, 1990, or are excavated or discovered on federal or tribal lands after that date.

Coordination and Consultation: Appropriate Native American group, Department of Interior, Bureau of Indian Affairs, State Historic Preservation Officer

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NOISE CONTROL ACT OF 1972

Purpose: Promulgate noise standards for highway traffic

Applicability: All federally funded projects for the construction of a highway on new location, or the physical alteration of an existing highway which significantly changes either the vertical or horizontal alignment or increases the number of through-traffic lanes.

General Procedures:

  1. Noise impact analysis
  2. Analysis of mitigation measures
  3. Incorporate reasonable and feasible noise abatement measures to reduce or eliminate noise impact

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POLLUTION PREVENTION ACT OF 1990

The Pollution Prevention Act focused industry, government, and public attention on reducing the amount of pollution through cost-effective changes in production, operation, and raw materials use. Opportunities for source reduction are often not realized because of existing regulations, and the industrial resources required for compliance, focus on treatment, and disposal. Source reduction is fundamentally different and more desirable than waste management or pollution control.

Pollution prevention also includes other practices that increase efficiency in the use of energy, water, or other natural resources, and protect our resource base through conservation. Practices include recycling, source reduction, and sustainable agriculture.

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PUBLIC HEARINGS – 23 U.S.C. 128

Purpose: To ensure adequate opportunity for public hearings on the effects of alternative project locations and major design features as well as the consistency of the project with local planning goals and objectives.

Applicability: Public hearings or hearing opportunities are required for projects described in each state’s FHWA-approved public involvement procedures.

General Procedures:  Public hearings or opportunity for hearings during the consideration of highway locations and design proposals are conducted as described in the state’s FHWA-approved public involvement procedures.  States must certify to FHWA that such hearings or the opportunity for them have been held and must submit a hearing transcript to FHWA.

Coordination and Consultation:  Appropriate federal, state, and local agencies.

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RESERVOIR SALVAGE ACT OF 1960

This act provides for the recovery and preservation of “historical and archaeological data” that might be lost or destroyed as a result of the construction of dams, reservoirs and attendant facilities.

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RESOURCE CONSERVATION AND RECOVERY ACT OF 1976 (RCRA)

Purpose: This act regulates the handling of hazardous waste sites for the protection of human health and the environment. RCRA gave EPA the authority to control hazardous waste from the "cradle-to-grave" including the generation, transportation, treatment, storage, and disposal of hazardous waste. The 1986 amendments to RCRA enabled EPA to address environmental problems that could result from underground tanks storing petroleum and other hazardous substances. RCRA focuses only on active and future facilities and does not address abandoned or historical sites (see CERCLA).

The Federal Hazardous and Solid Waste Amendments (HSWA) are the 1984 amendments to RCRA that required phasing out land disposal of hazardous waste. Some of the other mandates of this law include more stringent hazardous waste management standards and a comprehensive underground storage tank program.

Applicability: Any project that takes right-of-way containing hazardous waste.

General Procedures:  During early planning, the location of permitted and non-regulated hazardous waste sites should be identified. Subsequent remediation efforts may be required. Early coordination with the EPA or California Environmental Protection Agency, as appropriate, should occur to aid in identifying known or potential hazardous waste sites and remedial actions.

Coordination and Consultation: EPA, California Environmental Protection Agency.

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RIVERS AND HARBORS APPROPRIATIONS ACT OF 1899 - SECTIONS 9 AND 10

Purpose: Protection of navigable water in the United States.

Applicability: Any construction affecting navigable waters and any obstruction, excavation, of filling. This section requires permits for all structures such as riprap and activities such as dredging in navigable waters of the United States.  Navigable waters are defined as those subject to the ebb and flow of the tide and succeptible to use in their natural condition or by reasonable improvements as means to transport interstate or foreign commerce.  The ACOE grants or denies permits based on the effects on navigation.  Most activities covered under this act are also covered under  Section 404 of the Clean Water Act.  All activities involving navigable waters of the United State require a Section 10 permit.

General Procedures: Must obtain approval of plans for construction, dumping, and dredging permits (Section 10) and bridge permits (Section 9).

Coordination and Consultation:  U.S. Coast Guard, Army Corps of Engineers, EPA, state agencies.  Section 9 of the Rivers and Harbors Appropriations Act is administered by the U.S. Coast Guard.  Section 10 of the Rivers and Harbors Appropriations Act is administered by the Army Corps of Engineers.

Links:

  • Coast Guard- Environmental Clearance of Historic Bridges, (July 30, 1985)
  • Coast Guard- Environmental Clearance of Historic Bridges, (January 14, 1985)
  • Request for Guidance for Determining the Proper Environmental Document When Assessing the impacts to Historic Bridges, (June 18, 1984)
  • USCG/FHWA Procedures for Handling Projects which Require a USCG Bridge Permit, (October 11, 1983)
  • U.S. Coast Guard Procedures for Adopting Lead Agency Environmental Documents, (September 28, 1983)
  • FHWA Determination That a USCG Navigation Permit is Not Required (February 28, 2000)

SAFE DRINKING WATER ACT OF 1944, AS AMENDED

Purpose: Ensure public health and welfare through safe drinking water.

Applicability: All public drinking water systems and reservoirs (including rest area facilities).  Actions which may have a significant impact on an aquifer or wellhead protection area which is the sole or principal drinking water.

General Procedures:  Compliance with national primary drinking water regulations.  Compliance with wellhead protection plans.  Compliance with MOAs between EPA and FHWA covering specific sole source aquifers.

Coordination and Consultation: This act requires coordination with EPA when an area designated as a principal or sole source aquifer may be impacted by a proposed project. EPA will furnish information on whether any of the alternatives affect the aquifer and may cause potential impacts to the critical aquifer protection area.

EPA has designated the following sole source aquifers: Campo-Cottonwood, Fresno, Ocotillo-Coyote Wells, Santa Margarita, Scotts Valley.

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SAFE, ACCOUNTABLE, FLEXIBLE, EFFICIENT TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS (SAFETEA-LU), P.L. 109-59

SAFETEA-LU is the transportation funding act that was signed on August 10, 2005. SAFETEA-LU authorizes the federal surface transportation programs for highways, highway safety, and transit for the 5-year period 2005-2009. It covers a variety of transportation related issues including financing, congestion relief, improved safety, improved efficiency (such as coordinated planning and environmental streamlining), environmental stewardship, and transportation related research and studies. SAFETEA-LU includes a number of changes aimed at streamlining the environmental review process:

  • Environmental review process. SAFETEA-LU Section 6002 applies to EIS documents for which a Notice of Intent (NOI) was issued after August 10, 2005.  In summary, Section 6002 requires the following (please see our SAFETEA-LU page additional information and links to all the guidance):
    • The project sponsor must send a project initiation letter to FHWA prior to the start of NEPA.   There are several options for doing this; the NOI itself can serve this function, see Chapter 32 for more detail.
    • The FHWA serves as the federal lead agency for a transportation project, and the direct recipient of federal-aid funds must serve as a joint lead agency.  This means the Department is always a joint lead agency.  Local agencies can serve as a joint lead agency at the discretion of FHWA and the Department.
    • The lead agencies must invite all federal, state, tribal, regional and local government agencies that may have an interest in the project to be participating agencies.
    • Lead agencies must develop a coordination plan for public and agency participation and comment during the environmental review process.
    • Participating agencies and the public must be given an opportunity for input in the development of the purpose and need and the range of alternatives. Lead agencies must collaborate with participating agencies on the appropriate methodologies to be used. Note:  This is not requiring concurrence.
    • FHWA may issue a 180-day statute of limitations (SOL) on claims against USDOT and other Federal agencies for certain environmental and other approval actions. The 180-day SOL starts from the date that notice is published in the Federal Register by FHWA.  A SOL notice can be used for a highway project regardless of the category of documentation used under NEPA. It is expected that notices will be published for most EIS projects and many EA projects, but not for projects that are CEs.
  • Section 4(f) and Section 6009 . Under specified conditions, transportation programs or projects may be found to have a “de minimis” impact on resources protected by Section 4(f) of the Department of Transportation Act (i.e., public parks, recreation areas, wildlife and waterfowl refuges, and historic sites). No further evaluation of these resources will be necessary under Section 4(f).  For historic sites, a de minimis finding may be made in either of two conditions: the project will have no adverse effect on the historic site under Section 106 of the National Historic Preservation Act; or there will be no historic properties affected. Mitigation and enhancements may be used to offset impacts.  De minimis impacts on publicly owned parks, recreation areas, and wildlife and waterfowl refuges are defined as those that do not adversely affect the activities, features, and attributes of the 4(f) resource. When making this determination, it is important to distinguish the activities, features, and attributes of a Section 4(f) resource that are important to protect from those that can be used without adverse effects--for example, playground equipment versus parking facilities. The de minimis finding considers avoidance, minimization, mitigation or enhancement measures.  Please see FHWA Guidance on Determining De Minimis Impacts to Section 4(f) Resources exitand Chapter 20 in Volume 1 of the SER for more detailed information.
  • State assumption of responsibilities for CEs (Section 6004).After entering into a Memorandum of Understanding with the Secretary, each State may assume responsibility for categorical exclusions, with FHWA in a programmatic monitoring role. The California Department of Transportation has assumed CE responsibilities; the MOU was signed on June 7, 2007. Further details can be found in Chapter 30, Volume 1 of the SER.
  • Pilot Program (Section 6005). SAFETEA-LU establishes a project delivery pilot program for 5 States (specified as Alaska, Ohio, Oklahoma, Texas, and California), allowing them to apply to USDOT to assume all USDOT environmental responsibilities under NEPA and other environmental laws (excluding the Clean Air Act and transportation planning requirements). This delegation authority is limited to highway projects, and it could be for specific projects within a State or a programmatic delegation. As one of the designated pilot states, the California Department of Transportation is pursuing NEPA delegation and expects the MOU to be signed in summer 2007.
  • Interstate System Section 4(f) Exemption (6007). Interstate HigwayThe Interstate System is exempted from being treated as an historic resource under Section 4(f), unless the Secretary determines that individual elements possess national or exceptional historic significance and should receive protection. The provisions of these sections became effective in August 2005. Additional details available at DEA's Environmental Managment Office Internet Site.

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TRANSPORTATION EFFICIENCY ACT FOR THE 21ST CENTURY (TEA-21), P.L. 105-178

The Transportation Equity Act for the 21st Century was enacted June 9, 1998 as Public Law 105-178. TEA-21 authorizes the Federal surface transportation programs for highways, highway safety, and transit for the 6-year period 1998-2003.

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TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 AS AMENDED

Purpose: Title VI of the Civil Rights Act of 1964, as amended, prohibits discrimination in federally assisted programs. The Act stipulates that no person in the United States shall, on the ground of race, color, national origin, age, sex, or disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

Applicability: All federal programs and projects.

General Procedures: Set forth in 49 CFR 21 and 23 CFR 200.

Coordination and Consultation: FHWA headquarters and field offices.

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THE UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICY ACT OF 1970, AS AMENDED IN 1987

Purpose: These acts, collectively known as the Uniform Act, as amended, provides for uniform and equitable treatment of persons displaced from their homes, businesses, non-profit associations, or farms by federal and federally-assisted programs, and establishes uniform and equitable land acquisition policies.   The Act assures that such persons are treated fairly, consistently, and equitably, and so that they will not suffer disproportionate injuries.

Applicability: All projects involving federal funds.

General Procedures: Set forth in 49 CFR 24. Whenever there are relocation impacts involved in a Federal-aid project, the environmental document (EA or EIS) shall contain model language regarding the Act and shall cite its full title. 

Caltrans Procedures: There is additional language describing the benefits of the Act which shall be included in either the Community Impact Assessment report or the Draft Relocation Impact Report (DRIR). A DRIR is prepared by Right of Way to support the Draft Environmental Document and a Final Relocation Impact Report (FRIR) is prepared by Right of Way to support the Final Environmental Document. District Environmental and District Right of Way shall coordinate as to which technical report shall contain the expanded description of the Act.

Coordination and Consultation: FHWA has lead responsibility.  Appropriate federal, state, and local agencies.

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WATER BANK ACT, WETLANDS MITIGATION BANKS, ISTEA 1991, SECTIONS 1006-1007

Purpose: Preserve, restore, and improve wetlands of the nation.

Applicability: Any agreements with landowners and operators in important migratory waterfowl nesting and breeding areas.

General Procedures: Apply procedures established for implementing Executive Order 11990.

Coordination and Consultation: Secretary of Agriculture, Secretary of the Interior

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WETLANDS MITIGATION BANKS - ISTEA 1991, SECTIONS 1006-1007

Purpose: To mitigate wetlands impacts directly associated with projects funded through the National Highway System and Surface Transportation Program, by participating in wetland mitigation banks, restoration, enhancement and creation of wetlands authorized under the Water Resources Development Act, and through contributions to statewide and regional efforts.

Applicability:  Federally undertaken, financed, or assisted construction, and improvements, or with impacts on wetlands.

General Procedures: Evaluate and mitigate impacts on wetlands.  Specific finding required in final environmental document.

Coordination and Consultation:  US Fish and Wildlife Service,  EPA, Corps of Engineers, National Marine Fisheries Service, Natural Resources Conservation Service, state agencies.

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WILD AND SCENIC RIVERS ACT OF 1968, AS AMENDED

Purpose:  Preserve and protect wild and scenic rivers and immediate environments for benefit of present and future generations. 

Applicability: All projects which affect designated wild, scenic, and recreational rivers and immediate environment and rivers under study for inclusion into the system. The Act prohibits federal agencies from undertaking activities which would adversely affect the values for which the river was designated.

General Procedures: This act is administered by a variety of state and federal agencies.  Designated river segments flowing through federally managed lands are administered by the land managing agency (e.g., US Forest Service, Bureau of Land Management and the National Park Service).  River segments flowing through private lands are administered by the State Resources Agency in conjunction with local government agencies.

Coordination and Consultation: On projects that affect designated rivers or their immediate environments, Caltrans consults with the managing agencies during the NEPA process.  This early consultation reduces potential conflicts with wild and scenic river values that are protected by the Act.

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WILDERNESS ACT OF 1964

Purpose: This act preserves and protects wilderness areas in their natural condition for use and enjoyment by present and future generations.

Applicability: All lands designated by Congress as part of the wilderness system. 

General Procedures:  Apply for modification or adjustment of wilderness boundary by either Secretary of the Interior or Agriculture, as appropriate. 

Coordination and Consultation:  Department of Agriculture (USFS), Department of Interior (USFWS, NPS, BLM) and state agencies.

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WILDFLOWERS, SURFACE TRANSPORTATION AND UNIFORM RELOCATION ACT OF 1987, SECTION 130

Purpose: To encourage the use of native wildflowers in highway landscaping.

Applicability: Native wildflowers are to be planted on any landscaping project undertaken on the Federal-Aid highway system.

General Procedures: At least ¼ of 1% of funds expended on a landscaping project must be used to plant native wildflowers on that project.

Coordination and Consultation:  FHWA

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