Effective Delivery of Small-Scale Federal-Aid Projects (2011)

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68 APPENDIX E Applications of Federal Requirements for Environmental Review This appendix presents a table highlighting the various environmental activities that can be delegated as per the transporta- tion authorization legislation in SAFETEA-LU Section 6005. In addition, a document provided by the FHWA that describes federal environmental laws and Executive Orders applicable to the development and review of transportation infrastructure projects is included in this Appendix.

69 TABLE E1 SUMMARY OF ENVIRONMENTAL AUTHORITIES ELIGIBLE FOR DELEGATION UNDER SAFETEA-LU SECTION 6005 Federal Environmental Legislation Can Be Delegated Under SAFETEA-LU Section 6005 Clean Air Act, U.S.C. 7401-7671q Any determinations which do not involve conformity Noise Compliance with the noise regulations at 23 CFR 772 Wildlife Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-1544, at Section 1536 Marine Mammal Protection Act, 16 U.S.C. 1361 Anadromous Fish Conservation Act, 16 U.S.C. 757a-757g Fish and Wildlife Conservation Act, 16 U.S.C. 2901-2911 Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d. Migratory Bird Treaty Act, 16 U.S.C. 703-712 Historic and Cultural Resources Section 106 of the National Historic Preservation Act, 16 U.S.C. 470f Archeological Resources Protection Act, 16 U.S.C. 470aa-11 Archeological and Historic Preservation Act, 16 U.S.C. 469-469c Native American Grave Protection and Repatriation Act,, 25 U.S.C. 3001-3013, only applies on federal or tribal lands Social and Economic Impacts 23 U.S.C. 128 Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Analysis of social and economic effects of property acquisition, relocations of homes and businesses only. All other aspects of Uniform Act Implementation and Administration are not eligible for delega- tion. If land and/or improvements are to be acquired, an appraisal for the fair market value must be done and offered to the property owner. American Indian Religious Freedom Act, 42 U.S.C. 1996 Farmland Protection Policy Act, 7 U.S.C. 4201-4209 Water Resources and Wetlands Clean Water Act, 33 U.S.C. 1251-1377 Section 404 Section 401 Section 319 Coastal Barrier Resources Act, 16 U.S.C. 3501-3510 Coastal Zone Management Act, 16 U.S.C. 1451-1465 Land and Water Conservation Fund, 16 U.S.C. 4601-4 Safe Drinking Water Act, 42 U.S.C. 300f-300j-6 Rivers and Harbors Act of 1899 Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287 Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931 TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133 (b)(11) Flood Disaster Protection Act, 42 U.S.C. 4001-4128 Marine Protection Research and Sanctuaries Act, 33 U.S.C. 1401-1445 Water Bank Act, 16 U.S.C. 1301-1311 Parklands Section 4(f) Hazardous Materials Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601- 9675 Superfund Amendments and Reauthorization Act of 1986 Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k Federal Procedures National Environmental Policy Act, 42 U.S.C. 4321-4335 Land Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 319

70 INTRODUCTION Many federal environmental statutes and executive orders establish requirements applicable to the development and review of transportation infrastructure projects that receive financial support from the department of transportation (DOT). DOT strives to meet these requirements in a manner that is both expeditious and environmentally sound. This document provides a brief description of the main statutes and executive orders applicable to the development and review of these transportation infrastructure projects. A. AIR QUALITY Clean air aCt, 42 USC § 7401. This statute regulates emissions of air pollutants in order to protect human health and the environment. In general, the Clean Air Act delegates responsibility to state and local governments to prevent and control air pollution by requesting states to submit state implementation plans (SIPs) to the Environmental Protection Agency (EPA) for program approval and delegation of implementation responsibilities. SIPs are written plans that states develop to provide for attainment and maintenance of the National Ambiant Air Quality Standards. If a state fails to create and implement an adequate SIP, EPA creates and implements its own SIP for that state. In 1990, Congress amended the Clean Air Act to include parts that: strengthen measures for attaining air quality standards (Title I); set forth provisions relating to mobile sources (Title II); expand the regulation of hazardous air pollutants (Title III); require substantial reductions in power plant emissions for control of acid rain (Title IV); establish operating permits for all major sources of air pollution (Title V); establish provi- sions for stratospheric ozone protection (Title VI) and expand enforcement powers and penalties (Title VII) [Source: 42 USC § 7401]. Regulations implementing the Clean Air Act may be found in 40 CFR Parts 50-99. Transportation plans, programs and projects are required to conform to the state’s air quality implementation plans that provide for attainment of the national ambient air quality standards. This requirement applies to plans, programs and projects that occur in non-attainment and maintenance areas [Source: 23 U.S.C. § 109(j); 42 U.S.C. § 7521(a)]. B. ENVIRONMENTAL JUSTICE Executive Order No. 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low- income Populations.” This Executive Order establishes a formal federalpolicy on environmental justice. The Council on Environmental Quality (CEQ) has oversight of the federal government’s compliance with EO 12898. CEQ has published a guidance document on environmental justice for federal agencies. In addition, all federal agencies were directed under EO 12898 to establish internal directives to ensure that the spirit of the order is reflected in the full range of their activities. The CEQ’s guidance describes how analysis of environmental justice impacts must be integrated within the NEPA framework, including the scoping, public participation, analysis, alternatives and mitigation phases of NEPA analysis. The U.S. Depart- ment of Transportation’s agency level order establishing procedures for compliance with Executive Order 12898 establishes requirements for integrating environmental justice into the NEPA process through analysis of environmental justice impacts and public involvement, as well as definitions of relevant terms [Source: Executive Order No. 12898]. C. WILDLIFE Section 7 of the Endangered Species Act, 16 U.S.C. § 1531.1. The Endangered Species Act (ESA) provides for the pro- tection of species that are at risk of extinction throughout all or a significant portion of their range, and for the protection of ecosystems on which they depend. Generally, the U.S. Fish and Wildlife Service (FWS) coordinates ESA activities for terrestrial and freshwater species, and the National Marine Fisheries Service (NMFS) coordinates ESA activities for marine and anadromous species. The ESA lists plant and animal species that are endangered or threatened. All listing decisions are based solely on the best scientific and commercial data available, and consideration of economic impacts during the listing process is prohibited by the Act. Under Section 7 of the ESA, all federal agencies are required to undertake programs for the conservation of endangered and threatened species. Any federal action that would jeopardize a listed species or destroy or modify its critical habitat is prohibited. Section 7 activities must be carried out in consultation with FWS or NMFS [Source: 16 U.S.C § 1531]. Require- ments for the consultation process are described in 50 C.F.R. 402.

71 Executive Order 13112, “Invasive Species.”2. The purpose of this Executive Order is to prevent the introduction of invasive species into the natural environment and provide for their control and minimize the economic, ecological and human health impacts that invasive species may cause. The Order established an Invasive Species Council to over- see implementation of the Order, oversee federal agency activities concerning invasive species, develop an National Invasive Species Management Plan and facilitate development of a coordinated network among federal agencies to document, evaluate, and monitor impacts from invasive species on the economy, environment and human health. Each federal agency whose actions may affect the status of invasive species is directed to identify such actions and attempt to prevent the introduction of invasive species and not authorize, fund or carry out actions that it believes are likely to cause or promote the introduction or spread of invasive species. [Source: Executive Order 13112.] Marine Mammal Protection Act, 16 U.S.C. § 1361. 3. This statute establishes a federal responsibility to conserve marine mammals with management vested in both the Department of Interior and the Department of Commerce. The act created a moratorium, with certain exceptions, on the taking of marine mammals in United States waster and by United States citizens on the high seas, and on the importing of marine mammals and marine mammal products into the United States. Native Americans, Aleut and Eskimos are exempted from the moratorium on taking provided that the taking is conducted for the sake of subsistence or for the purpose of creating and selling authentic native articles of handicraft and clothing [Source: 16 U.S.C. § 1361]. Applicable regulations: National Oceanic and Atmospheric Administration, Department of Commerce—Civil procedures, 15 CFR Part 904; National Park Service, Department of the Interior—National park system units in Alaska, 36 CFR Part 13; United States Fish and Wildlife Service, Department of the Interior—General provisions, 50 CFR Part 10; United States Fish and Wildlife Service, Department of the Interior—Endangered and threatened wildlife and plants, 50 CFR Part 17; United States Fish and Wildlife Ser- vice, Department of the Interior—Marine mammals, 50 CFR Part 18; United States Fish and Wildlife Service, Depart- ment of the Interior—Administrative procedures for grants-in-aid (Marine Mammal Protection Act of 1972), 50 CFR Part 82; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Com- merce—Regulations governing the taking and importing of marine mammals, 50 CFR Part 216; National Marine Fish- eries Service, National Oceanic and Atmospheric Administration, Department of Commerce—Regulations governing the taking and importing of marine mammals, 50 CFR Part 216; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce—General provisions, 50 CFR Part 217; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce—Endangered fish or wildlife, 50 CFR Part 222; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce—Authorization for commercial fisheries under Marine Mammal Protection Act of 1972, 50 CFR Part 229; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce—Whaling provisions, 50 CFR Part 230; and, Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations—Transfer of marine mammal management authority to states, 50 CFR Part 403. Anadromous Fish Conservation Act, 16 U.S.C. § 757a-757g. 4. This statute authorizes the Secretaries of the Interior and Commerce to enter into cooperative agreements with the states and other non-federal interests for conservation, development and enhancement of anadromous fish, including those in the Great Lakes, and to contribute up to 50 per- cent as the federal share of the cost of carrying out such agreements. Authorized are investigations, engineering and biological surveys, research, stream clearance, construction, maintenance, and operations of hatcheries and devices and structures for improving movement, feeding and spawning conditions. Also authorized is construction by the Bureau of Reclamation and the Army Corps of Engineers of water resource projects needed solely for such fish. The Service is authorized to conduct studies and make recommendations to the EPA concerning measures for eliminating or reducing pollution substances detrimental to fish and wildlife in interstate or navigable waters, or their tributaries [Source: 16 U.S.C. § 757a-g]. Endangered Species Committee Regulations—Anadromous fisheries conservation, development and enhancement, 50 CFR Part 401. Fish and Wildlife Conservation Act, 16 U.S.C. § 2901-2911. 5. This statute authorizes financial and technical assis- tance to the states for the development, revision, and implementation of conservation plans and programs for nongame fish and wildlife [Source: 16 U.S.C. § 2901-2911]. United States Fish and Wildlife Service, Department of the Interi- or—Rules implementing the Fish and Wildlife Conservation Act of 1980, 50 CFR Part 83. Fish and Wildlife Coordination Act, 16 U.S.C. § 661.6. This statute requires consultation with the U.S. Fish and Wildlife Service (FWS) and the appropriate state wildlife agency when a project will impound, divert, channelize, or

72 otherwise control or modify the waters of any stream or other body of water. Generally, if a permit is required under Sections 9 or 10 of the River and Harbor Act of 1899, or Sections 402 or 404 of the Clean Water Act, the consultation requirement will apply. Permit applications will be forwarded to the FWS, which will review them according to their “Guidelines for the Review of Fish and Wildlife Aspects of Proposals in or Affecting Navigable Waterways,” published in the Federal Register on December 1, 1975. The FWS issued a mitigation policy in the Federal Register on January 23, 1981 that can be consulted when planning mitigation measures. The results of the consultation should be included in the Final EIS or EA [Sources: 33 U.S.C. § 401, 16 U.S.C. § 661]. Executive Order 13186, “Responsibility of Federal Agencies to Protect Migratory Birds.”7. This Executive Order directs each federal agency taking actions that have, or are like to have, a measurable effect on migratory bird popula- tions to develop and implement, within 2 years, a Memorandum of Understanding with the Fish and Wildlife Service that shall promote the conservation of migratory bird populations. The Department of Interior was given the task to establish an interagency Council for the Conservation of Migratory Birds to oversee the implementation of the Order [Source: Executive Order 13186]. Migratory Bird Treaty Act, 16 U.S.C. § 703. 8. The purpose of this statute is to protect the most common wild birds found in the United States by making it unlawful for anyone to kill, capture, collect, possess, buy, sell, trade, ship, import, or export any migratory bird. Also covered by the act is the indirect killing of birds by destruction of their nests and eggs. The Fish and Wildlife Service reviews and comments on proposals that could kill birds, even indirectly [Source: 16 U.S.C. § 703]. The Fish and Wildlife’s implementing regulations are located at 50 CFR Part 10, 50 CFR Part14, and 50 CFR Part 20. D. HISTORIC AND CULTURAL RESOURCES Section 106 of the National Historic Preservation Act, 16 U.S.C. §470f. 1. Section 106 of the National Historic Preser- vation Act, in general, requires the head of any federal agency having jurisdiction over a proposed federal or federally assisted undertaking, or having authority to license an undertaking, to take into account the effect of the undertak- ing on any property included in or eligible for inclusion in the National Register of Historic Places. Section 106 also requires the agency head to afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment on such undertaking [Source: 16 U.S.C. § 470f]. The ACHP’s regulations implementing section 106 appear at 36 CFR Part 800. Archeological Resources Protection Act, 16 U.S.C. § 470aa-11.2. This statute preserves and protects paleontological resources, historic monuments, memorials and antiquities from loss or destruction. The act applies to archeological resources on federally or Native American-owned property, establishes penalties for looting and vandalizing such archaeological sites and places protection and management responsibilities on federal agencies having jurisdiction over land on which the resources may be situated [Source: 16 U.S.C. § 470aa-11]. Regulations concerning the Archaeologi- cal Resources Protection Act may be found at 43 CFR Part 7, protection of Archaeological Resources and 43 CFR Part 79, Curation of Federally Owned and Administered Archaeological Collections. Archeological and Historic Preservation Act, 16 U.S.C. § 469-469c.3. This statute carries out the policy established by the Historic Sites Act and directs federal agencies to notify the Secretary of the Interior (National Park Service) whenever they find a federal or federally assisted, licensed, or permitted project may cause loss or destruction of signifi- cant scientific, prehistoric or archeological data. The Department of Interior and/or the federal agency may undertake a survey or data recovery [Source: 16 U.S.C. § 469-469c]. The Department of Interior’s implementing regulations can be found at 43 CFR Part 7. Native American Grave Protection and Repatriation Act (NAGPRA), 25 U.S.C. § 3001.4. This statute establishes a means for American Indians, Native Hawaiians, and Native Alaskans to request the return of human remains and other cultural items presently held by federal agencies or federally assisted museums or institutions. The act also contains provisions regarding the intentional excavation and removal of, inadvertent discovery of, and illegal trafficking in Native American human remains and cultural items. All federal agencies that manage land and/or are responsible for archaeological collections from their lands or generated by their activities must comply with the act [Source: 25 U.S.C. § 3001]. The Department of the Interior’s regulations implementing NAGPRA may be found at 43 CFR 10.

73 Executive Order No. 13007, “Indian Sacred Sites.”5. This Executive Order requires federal land managing agencies to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and to avoid adversely affecting the physical integrity of such sacred sites. It also requires agencies to develop procedures for rea- sonable notification of proposed actions or land management policies that may restrict access to or ceremonial use of, or adversely affect sacred sites [Source: Executive Order 13007]. E. SOCIAL AND ECONOMIC IMPACTS Uniform Relocation Assistance And Real Property Acquisition Policies Act Of 1970 (Uniform Act), 42 U.S.C. 1. § 4601. This statute establishes a policy for the fair and equitable treatment of persons displaced as a result of federal and federally assisted programs. If land is to be acquired for a federal or federally assisted program, the program’s environmental documentation should contain a description of the land to be acquired. In cases where an acquisition requires the displacement of businesses or individuals, there is a social impact that must be analyzed as part of the environmental documentation process [Source: 42 U.S.C. § 4601]. Federal regulations implementing the Uniform Act are contained in 49 CFR Part 24. Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks.”2. This Executive Order directs each agency to “ensure that its policies, programs, activities, and standards address disproportionate risks to children . . .” Also, for each regulatory action subject to the Order, agencies must conduct “an evaluation of the environmental health or safety effects of the planned regulation on children” and include “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.” These findings are to be submitted to OMB’s Office of Information and Regulatory Affairs (OIRA) for review. In addition, the Order created a task force, co-chaired by the secretary of Health and Human Services and the EPA administrator, to make recommendations to the President on federal strategies for children’s environmental health and safety [Source: Executive Order 13045]. Executive Order No. 13175, “Consultation and Coordination with Indian Tribal Governments.” 3. This Executive Order establishes regular and meaningful consultation and collaboration with Indian tribal governments in the devel- opment of regulatory practices on federal matters that significantly or uniquely affects their communities. Each agency is responsible for establishing a process to permit elected officials and other representatives of Indian tribal govern- ments to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities [Source: Executive Order No. 13715]. American Indian Religious Freedom Act, 42 U.S.C. § 1996.4. This statute protects and preserves places of religious importance to American Indians, Eskimos, Aleuts, and Native Hawaiians, including access to sites, use and possession of sacred objects and the freedom to worship through ceremonials and traditional rites. This act applies to all projects that affect places of religious importance to Native Americans [Source: 42 U.S.C. § 1996]. Applicable regulations: Forest Service, Department of Agriculture—Protection of archaeological resources: Uniform regulations, 36 CFR Part 296; Office of the Secretary of the Interior—Protection of archaeological resources: Uniform regulations, 43 CFR Part 7; and, United States Fish and Wildlife Service, Department of the Interior—Seizure and forfeiture procedures, 50 CFR Part 12. Farmland Protection Policy Act (FPPA), 7 U.S.C. § 4201-4209.5. This statute minimizes the impact federal programs have on the unnecessary and irreversible conversion of farmland to nonagricultural uses. Federal programs are to be administered to be compatible with state, local units of government, and private programs and policies to protect farm- land. Federal agencies are required to develop and review their policies and procedures to implement the FPPA. The FPPA does not authorize the federal government to regulate the use of private or nonfederal land. Projects are subject to FPPA if they may irreversibly convert farmland directly or indirectly to nonagricultural use and are completed by a federal agency or with assistance from a federal agency [Source: 7 U.S.C. § 4201-4209]. Implementing regulations by the Department of Agriculture, Natural Resources Conservation Service are found at 7 CFR Part 658. F. WATER RESOURCES AND WETLANDS Clean Water Act, 33 U.S.C. § 1251-1376.1. This statute establishes the basic structure for regulating discharges of pollutants into the waters of the United States. It gives the EPA the authority to implement pollution control programs,

74 such as setting wastewater standards for industry. The Clean Water Act also continues requirements to set water quality standards for all contaminants in surface waters. The Act makes it unlawful for any person to discharge any pollutant from a point source into navigable waters, unless a permit is obtained. The act also funded construction of sewage treatment plants under the construction grants program. Section 401 requires water quality certification from the applicable state Water Resource Agency. Section 319 requires that all projects be consistent with state Non-Point Source Pollution Management programs. Section 404 requires the obtainment of a permit for dredge or fill material from the United State Corps of Engineers or state agency, as appropriate. Section 402 requires that permits for all other discharges are to be acquired from the EPA or appropriate state agency [Source: 33 U.S.C. §§ 1251-1376]. Applicable regulations may be found at 23 CFR 650 Subpart B, 33 CFR 209, 320-323, 325, 328, 329, and 40 CFR 121- 125, 129-131, 133, 135-136, 230-231. Section 404 of the Clean Water Act, 33 U.S.C. § 1344.2. This section gives authority to the U.S. Army Corps of Engi- neers (USACE) to regulate discharges of dredged or fill material into waters of the United States, including wetland areas. This authority encompasses fill that occurs as a result of infrastructure development, such as a light rail line or a bus terminal. Permit applicants must demonstrate that they have attempted to avoid wetland impacts where practi- cable. Where impacts do occur they must be compensated by restoration or creation of wetlands [Source: 33 U.S.C. § 1344]. Regulations outlining USACE’s authority and general policies for implementing the program are found at 33 C.F.R. 320 and 40 C.F.R. 230. Coastal Barrier Resources Act, 16 U.S.C. § 3501.3. This statute designates a protected network of undeveloped coastal barriers located on the Atlantic and Gulf coasts called the Coastal Barrier Resources System. Section 5 of this Act prohibits federal expenditures for construction of any facilities, structures, roads, bridges, airports, etc., within the system. Exceptions can be made for some activities such as the maintenance of existing channel improvements and related structures, and the maintenance, replacement, reconstruction, or repair (not expansion) of publicly operated roads or facilities which are essential links in a larger network or system. Consultation with the U.S. Department of the Interior is required. When a proposed project impacts a coastal barrier unit, the draft Environmental Impact State- ment (EIS) should: include a map showing the relationship of each alternative to the unit(s); • identify direct and indirect impacts to the unit(s), qualifying and describing the impacts as appropriate; • discuss the results of early coordination with the Fish and Wildlife Service, identifying any issues raised and how • they were addressed; and identify any alternative which (if selected) would require an exception under the Act. • Any issues identified or exceptions required for the preferred alternative should be resolved prior to its selection. This resolution is documented in the final EIS [Source: 16 U.S.C. § 3501]. Coastal Zone Management Act, 16 U.S.C. § 1451.4. This statute established a voluntary program in which, of the 35 states with coastal zones, 28 states are currently participating. These states have Department of Commerce approved state plans and receive federal money and technical assistance to administer their programs. If a transportation project will directly affect the coastal zone of any state with an approved Coastal Zone Management (CZM) Program, the environmental document must show whether the project will be consistent with the CZM Plan. The state agency man- aging the program, called the principal 306 agency, is usually the state Department of Natural Resources or equivalent agency. This agency should be consulted for procedures that are used to determine consistency with the CZM Plan and its opinion on whether the proposed project is consistent with the state’s program. The environmental document should present the applicant’s certification that the project is (or is not) consistent with the CZM program and the views of the state agency [Source: 16 U.S.C. § 1451]. Surface Transportation Board—Procedures for implementation of environ- mental laws, 49 CFR Part 1105. Land and Water Conservation Fund, 16 U.S.C. §§ 4601-4. 5. This statute provides money to federal, state, and local governments to purchase land, water and wetlands for the benefit of the public. Lands and waters purchased through the LWCF are used to: Provide recreational opportunities• Provide clean water • Preserve wildlife habitat • Enhance scenic vistas • Protect archaeological and historical sites • Maintain the pristine nature of wilderness areas •

75 Land is bought from landowners at fair-market value (unless the owner chooses to offer the land as a donation or at a bar- gain price). The Fund receives money mostly from fees paid by companies drilling offshore for oil and gas. Other funding sources include the sale of surplus federal real estate and taxes on motorboat fuel. Section 6(f) of the act contains provisions to protect federal investments and the quality of assisted resources. It discourages the casual “discard” of park and recreation facilities by ensuring changes or conversions from recreation use will bear a cost. The “anti-conversion” requirement applies to all parks and other sites that have been the subject of Land and Water grants of any type [Source 16 U.S.C. §§ 4601-4]. Implementing regulations: Forest Service, Department of Agriculture—Occupancy and use of developed sites and areas of concentrated public use, 36 CFR Part 291. Rivers and Harbors Act, 33 U.S.C. §403.6. This statute provides for the protection of navigable waters in the United States by prohibiting the construction of any bridge, dam, dike or causeway over or in navigable waterways of the United States without Congressional approval. Administration of Section 9 has been delegated to the Coast Guard. Structures authorized by the state legislatures may be built if the affected navigable waters are totally within one state, provided that the plan is approved by the Chief of Engineers and the Secretary of the Army. Under section 10 of the Act, the building of any wharfs, piers, jetties, and other structures is prohibited without Congressional approval, and excavation or fill within navigable waters requires the approval of the Chief of Engineers [Sources: 33 U.S.C. § 401, 33 U.S.C. § 403]. Applicable regulations: Fishing and hunting regulations, 33 CFR Part 206; Administrative procedure with respect to Corps of Engineers, 33 CFR Part 209; Permits for structures or work in or affecting navigable waters of United States, 33 CFR Part 322; Corp of Engineers Nationwide permit program, 33 CFR 330. Safe Drinking Water Act (SDWA), 42 U.S.C. §§ 300f-300j-6.7. This statute seeks to ensure public health and welfare through safe drinking water. The SDWA applies to all public drinking water systems and reservoirs and actions that may have a significant impact on an aquifer or wellhead protection area that is the sole or principal drinking water. The 1996 amendments requires states to develop and implement Source Water Assessment Programs to analyze existing and potential threats to the quality of the public drinking water throughout the state [Source: 42 U.S.C. § 300f-300j-6]. The EPA regulations on SDWA: National primary drinking water regulations, 40 CFR Part 141, and National primary drinking water regulations implementation, 40 CFR Part 142. Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271-1287.8. This statute preserves and protects wild and scenic rivers and immediate environments for the benefit of present and future generations. All streams and their adjacent land areas which are included in the National Wild and Scenic Rivers System are classified and designated in the following cat- egories: wild river areas, scenic river areas, or recreational river areas. This statute applies to all projects that affect designated and potential wild, scenic and recreational rivers, and/or immediate environments. Project proposals and reports must be coordinated with the appropriate federal agency, either the Department of Interior or Agriculture [Source: 16 U.S.C. §§ 1271-1287]. Applicable regulations: Department of Agriculture—Forest Service, 36 CFR 297; Department of Interior—National Park Service, 43 CFR Part 8350. Executive Order No. 1190, “Protection of Wetlands.” 9. This Executive Order was created to avoid the long and short term adverse impacts associated with the destruction or modification of wetlands and to avoid direct or indirect sup- port of new construction in wetlands wherever there is a practicable alternative. The Order directs federal agencies to avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harms to wetlands that may result from such use. In making this finding, the agency may take into account economic, environmental and other pertinent factors [Source: Executive Order No. 11990]. Preservation of the Nation’s Wetlands, U.S. DOT Order 5660.1A sets forth the U.S. Department of Transportation (DOT) policy for interpreting Executive Order 11990. The order requires that transportation facilities and projects should be planned, constructed, and operated to assure the protection, preservation, and enhancement of the nation’s wetlands to the fullest extent practicable, and establishes procedures for implementation of the policy [Source: U.S. DOT Order 5660.1A]. Executive Order No. 11998, “Floodplain Management.”10. This Executive Order emphasizes the importance of flood- plains and directs federal agencies to avoid conducting, allowing or supporting actions on a floodplain. When contem- plating a mass transportation project, maps of the Federal Insurance Administration should be consulted to determine if the proposed project site is located within the 100-year floodplain. Flood Insurance Rate Maps (FIRMs) are avail- able for review at local zoning or planning commission offices. If the proposed project is located within a floodplain, a detailed analysis should be included in the environmental document, as specified in U.S. Department of Transportation Order 5650.2, “Floodplain Management and Protection.” The analysis should discuss any risk to, or resulting from, the action, the impacts on natural and beneficial floodplain values, the degree to which the action provides direct or

76 indirect support for development in the floodplain and measures to minimize harm or to restore or preserve the natural and beneficial floodplain values affected by the project [Sources: Executive Order No. 1198 and U.S. Department of Transportation Order 5650.2]. Emergency Wetlands Resources Act, 16. U.S.C. § 3921, 3931.11. This statute promotes the conservation of wetlands in the United States in order to maintain the public benefits they provide. The statute requires the preparation of a national wetlands priority conservation plan that provides priority with respect to federal and state acquisition and also provides direction for the national wetlands inventory. This statute also authorized the purchase of wetlands from Land and Water Conservation Fund monies. It required the Secretary to establish a National Wetlands Priority Conservation Plan, required the states to include wetlands in their Comprehensive Outdoor Recreation Plans, and transferred to the Migratory Bird Conservation Fund amounts equal to the import duties on arms and ammunition. The Act extended the Wetlands Loan Act authorization through 1988, and forgave the previous advances under the Act. It also required the Secretary to report to Congress on wetlands loss, including an analysis of the role of federal programs and policies in inducing such losses. In addition, it directed the Secretary, through the Service, to continue the National Wetlands Inventory; to complete by September 30, 1998, mapping of the contiguous United States; to produce, as soon as practicable, maps of Alaska and other noncontiguous portions of the United States; and to produce, by September 30, 1990, and at ten-year intervals thereafter, reports to update and improve in the September 1982, “Status and Trends of Wetlands and Deepwater Habitat in the Coterminous United States, 1950s to 1970s.” The Fish and Wildlife Service coordinates this statute [Source: 16. U.S.C. § 3921, 3931]. Intermodal Surface Transportation Efficiency Act of 1991: Wetlands Mitigation Banks- Sec. 1006-1007. 23 12. U.S.C. §§ 103(i)(13), 133(b)(11). The Wetlands Mitigation Banks purpose is to mitigate wetlands impacts directly associated with projects funded through the National Highway System and STP, 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. It applies to federally undertaken, financed, or assisted construction, and improvements, or with impacts on wetlands. Participants must evaluate and mitigate impacts on wetlands and a specific finding regarding wetlands is required in the final environmental document [Sources: 23 U.S.C. §§ 103(i)(13), 133(b)(11)]. Implementing regulations are found at 23 CFR Parts 771, 777. Flood Disaster Protection Act 42 U.S.C. §§ 4001-4128. 13. The Flood Disaster Protection Act mandates flood insurance for all federally backed mortgages and mortgages and loans obtained through federally insured and regulated finan- cial institutions. In addition, disaster assistance grants (public assistance) are not available to local governments not participating in the program (individual property owners need not have flood insurance to be eligible for individual and family grants, however). The Act requires any federally assisted acquisition or construction project to avoid, or the design to be consistent with, FEMA-identified flood-hazard areas [Source: 42 U.S.C. §§ 4001-4128]. Applicable regulations 23 CFR 771, 44 CFR 59-62, 64-68, 70-71, 75-77. Marine Protection Research and Sanctuaries Act 33 U.S.C.14. §§ 1401-1445. The purpose of this statute is to prevent “unregulated dumping of material into the oceans, coastal, and other waters” that endanger “human health, welfare, and amenities, and the marine environment, ecological systems and economic potentialities.” Moreover, the trans- portation and dumping of radioactive, chemical, or biological substances is forbidden. This Act also includes Title III, known as the National Marine Sanctuaries Act, which charged the Secretary of the Department of Commerce to identify, designate, and manage marine sites based on conservational, ecological, recreational, historical, aesthetic, sci- entific or educational value within significant national ocean and Great Lake waters [Source: 33 U.S.C. §§ 1401-1445]. Applicable regulations are found at 33 CFR Part 320, 330 and 40 CFR Parts 220-225, 227-228, 230-231. Water Bank Act 16 U.S.C. §§ 1301-1311.15. The Water Bank Act’s purpose is to preserve, restore and improve wetlands of the nation. This Act applies to any agreements with landowners and operators in important migratory waterfowl nesting and breeding areas. The Act authorized the Secretary of Agriculture, after coordination with the Secretary of Interior, to enter into 10-year contracts with landowners to preserve wetlands and retire adjoining agricultural lands and directs the Secretary of Agriculture to reexamine payment rates every 5 years after 1980, and the amount to be expended in any one state in any calendar year is limited to not more than 15 percent of the funds appropriated [Source: 16 U.S.C. §§ 1301-1311]. The Department of Agriculture’s implementing regulations are found at 7 CFR 752.

77 G. PARKLANDS Section 4(f) of the Department of Transportation Act, 49 U.S.C. §303(b)-303(c). Title 49 of the United States Code, section 303(b), requires the Secretary of Transportation to cooperate and consult with the Secretaries of Interior, Housing and Urban Development, and Agriculture, along with the states in developing plans and programs that include measures to maintain or enhance the natural beauty of lands crossed by transportation activities or facilities. Section 303(c) in general provides that the Secretary may not approve a transportation program or project requiring the use of a public park, recreation area, wildlife refuge, or significant historic site unless there is no prudent or feasible alternative and the program or project includes all possible planning to minimize harm to property [Source: 49 U.S.C. §303(b)-303(c)]. Implementing regulations: Federal Highway Administration—Environmental impact and related procedures, 23 CFR Part 771. H. HAZARDOUS MATERIALS Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601. 1. The CERCLA was created to provide for liability, compensation, cleanup and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites. CERCLA was amended by the Superfund Amendments and Reauthorization Act (SARA) on October 17, 1986. CERCLA applies to any project that may deal with land containing a hazardous substance [Source: 49 U.S.C. § 9601]. 40 CFR 300 provides the orga- nizational structure and procedures for preparing for and responding to discharges of oil and releases of hazardous substances, pollutants, and contaminants. 43 CFR 11 supplements the procedures established under 40 CFR part 300 for the identification, investigation, study, and response to a discharge of oil or release of a hazardous substance, and it provides a procedure by which a natural resource trustee can determine compensation for injuries to natural resources that have not been nor are expected to be addressed by response actions conducted pursuant to the NCP. Superfund Amendments and Reauthorization Act (SARA), Public Law No. 99-499.2. This statute amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) on October 17, 1986. The amendments include: stressing the importance of permanent remedies and innovative treatment technologies in clean- ing up hazardous waste sites; requiring Superfund actions to consider the standards and requirements found in other state and federal environmental laws and regulations; providing new enforcement authorities and settlement tools; increasing state involvement in every phase of the Superfund program; increasing the focus on human health problems posed by hazardous waste sites; encouraging greater citizen participation in making decisions on how sites should be cleaned up; and increasing the size of the trust fund to $8.5 billion. SARA also required EPA to revise the Hazard Ranking System to ensure that it accurately assessed the relative degree of risk to human health and the environment posed by uncontrolled hazardous waste sites that may be placed on the National Priorities List [Source: Public Law No. 99-499]. Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901. 3. This statute regulates the generation, treat- ment, storage, transportation, and disposal of solid hazardous waste. RCRA also sets forth a framework for the man- agement of non-hazardous wastes. RCRA focuses only on active and future facilities and does not address abandoned or historical sites. Subtitle I establishes a regulatory program that prevents, detects and cleans up releases from under- ground storage tank systems containing petroleum or hazardous substances [Source: 42 U.S.C. § 6901]. 40 CFR 260- 271 establishes the standards and procedures the Environmental Protection Agency uses in implementing the RCRA. Toxic Substances Control Act, 15 U.S.C. § 2601.4. This statute empowers the EPA to track the industrial chemicals currently produced or imported into the United States. EPA can require the reporting or testing of those chemicals that it deems may pose an environmental or human-health hazard. EPA can also ban the manufacture and import of those chemicals that pose an unreasonable risk [Source: 15 U.S.C. § 2601]. EPA’s implementing regulations: Procedures governing testing consent agreements and test rules, 40 CFR Part 790-792; Provisional test guidelines, 40 CFR Part 795; Chemical fate testing guidelines, 40 CFR Part 796; Environmental effects testing guidelines, 40 CFR Part 797; Health effects testing guidelines, 40 CFR Part 798; and, Identification of specific chemical substance and mixture test- ing requirements, 40 CFR Part 799. Federal Insecticide, Fungicide and Rodenticide Act 7 U.S.C. § 136.5. The Federal Insecticide, Fungicide and Roden- ticide Act (FIFRA) controls the application of pesticides to provide greater protection to people and the environment. The primary focus of FIFRA was to provide federal control of pesticide distribution, sale, and use. EPA was given

78 authority under FIFRA not only to study the consequences of pesticide usage but also to require users (farmers, utility companies, and others) to register when purchasing pesticides. Through later amendments to the law, users also must take exams for certification as applicators of pesticides. All pesticides used in the U.S. must be registered (licensed) by EPA. Registration assures that pesticides will be properly labeled and that if in accordance with specifications, will not cause unreasonable harm to the environment [Source: 7 U.S.C. § 136]. The EPA’s implementing regulations are found at 40 CFR Parts 152-171. I. FEDERAL PROCEDURES National Environmental Policy Act (NEPA), 42 U.S.C. § 4321-4335. 1. This statute established a national policy for protection of the environment. The statute includes three major goals: (1) it sets national environmental policy; (2) it establishes a basis for environmental impact statements (EIS); and (3) it created the Council on Environmental Qual- ity (CEQ). NEPA requires that, to the extent possible, the policies, regulations, and laws of the federal government be interpreted and administered in accordance with the protection goals of the law. It also requires federal agencies to use an interdisciplinary approach in planning and decision making for actions that impact the environment. Finally, NEPA requires the preparation of an EIS on all major federal actions significantly affecting the human environment [Source: 42 U.S.C. § 4231-4335]. The Council on Environmental Quality (CEQ) issued regulations for implementing the procedural aspects of NEPA (40 CFR Part 1500 -1508). Shortly following the regulations CEQ issued guidance, commonly referred to as “Forty Questions and Answers on the CEQ Regulations.” Other applicable regulations are 23 CFR 771-772 and Executive Order 11514 as amended by Executive Order 11991 on NEPA responsibilities. Pollution Prevention Act, 42 U.S.C. § 13101.2. This statute focuses industry, government and public attention on reducing the amount of pollution through cost-effective changes in production, operation and raw materials use. The Act promotes using practices that increase efficiency in the use of energy, water, or other natural resources and protect the resource base through conservation, including recycling, source reduction and sustainable agriculture. The Act also created pollution prevention state grants to be awarded to promote the use of source reduction techniques by busi- nesses [Source: 42 U.S.C. § 13101]. Applicable regulations are found at 40 CFR 35.340, 48 CFR 23.702 and 48 CFR 52.223-5. 49 U.S.C. § 47101.3. This statute establishes the National Transportation Policy, stating that it is the goal of the United States to develop a national intermodal transportation system and that all forms of transportation will be full partners in the effort to reduce energy consumption and air pollution while promoting economic development. This statute also notes that it is in the public interest to reduce noncompatible land uses around airports and place a priority on efforts to mitigate noise around airports. The statute directs the Department of Transportation (DOT) to cooperate with state and local officials in developing airport plans and programs that are based on overall transportation needs and that such programs shall be developed considering long-range land-use plans and overall social, economic, environmental, system performance, and energy conservation objectives. Finally, the statute directs DOT to consult with the Secretary of the Interior and the Administrator of the EPA about any project included in a project grant application involving the location of an airport or runway, or a major runway extension that may have a significant effect on natural resources or the environment [Source: 49 U.S.C. §47101]. Implementing regulations: Federal Aviation Administration—Airport noise compatibility planning, 14 CFR Part 150; Federal Aviation Administration—state block grant pilot program, 14 CFR Part 156. Executive Order 12088, “Federal Compliance with Pollution Control Standards.”4. This Executive Order requires the head of each executive agency to ensure that all necessary actions are taken for the prevention, control and abate- ment of environmental pollution with respect to federal facilities and activities under the control of the agency. Each executive agency is responsible for cooperating with the Administrator of the EPA, and state, interstate and local agen- cies in the prevention, control and abatement of environmental pollution and consulting with aforementioned parties concerning the best techniques and methods available to do so. If the Administrator of the EPA, or the appropriate state, interstate or local agency notifies an executive agency that it is in violation of a pollution control standard, the executive agency is required to consult with the notifying agency and provide for its approval a plan to achieve and maintain compliance with the pollution control standard. If the Administrator of the EPA cannot resolve conflicts regard such violations, the Administrator shall request the Director of the Office of Management and Budget to resolve the conflict [Source: Executive Order 12088].

79 Executive Order 12373, “Intergovernmental Review of Federal Programs.”5. This Executive Order directs federal agencies to provide opportunities for consultation by elected officials of those states and local governments that would provide the non-federal funds for, or that would be directly affected by, proposed federal financial assistance or direct federal development. In effect, this Order allows federal agencies to rely on state and local processes for state and local coordination and review of proposed federal financial assistance. The Office of Management and Budget (OMB) maintains a list of official state entities designated by the states to review and coordinate proposed federal financial assistance and direct federal development [Source: Executive Order 12373]. Executive Order No. 13274, “Environmental Stewardship and Transportation Infrastructure Project Reviews.” 6. This Executive Order was enacted to enhance environmental stewardship and streamline environmental review of transportation infrastructure projects. The Executive Order establishes an interagency Transportation Infrastructure Streamlining Task Force to promote streamlining and environmental stewardship in transportation projects [Source: Executive Order No. 13274]. Executive Order 11593, “Protection and Enhancement of the Cultural Environment.”7. This Executive Order tasks federal agencies to survey all lands under their ownership or control and nominate to the National Register of Historic Places all properties that appear to qualify. It also requires agencies to inadvertently destroy such properties prior to completing their inventories. This order was codified as part of the 1980 amendments to the National Historic Preser- vation Act [Sources: Executive Order 11593, National Historic Preservation Act 16 USC § 470]. Sikes Act, 16 U.S.C. § 670a. 8. This statute requires the Secretary of Defense to carry out a program to provide for the conservation and rehabilitation of natural resources on military installations. To facilitate the program, the Secretary of each military department shall prepare and implement an integrated natural resources management plan for each military installation in the United States under the jurisdiction of the Secretary, unless the Secretary determines that the absence of significant natural resources on a particular installation makes preparation of such a plan inappropriate. The Secretary of a military department shall prepare each integrated natural resources management plan for which the Secretary is responsible in cooperation with the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service, and the head of each appropriate state fish and wildlife agency for the state in which the military installation concerned is located [Source: 16 U.S.C. 670a]. Office of the Secretary of Defense-Natural Resources Management Program, 32 CFR Part 190. J. LAND Landscaping and Scenic Enhancement (Wildflowers) 23 U.S.C. § 319. 1. The Landscaping and Scenic Enhancement Act empowers the Secretary of Transportation to approve as a part of the construction of federal-aid highways the costs of landscape and roadside development, including acquisition and development of publicly owned and controlled rest and recreation areas and sanitary and other facilities reasonably necessary to accommodate the traveling public, and for acquisition of interests in and improvement of strips of land necessary for the restoration, preservation, and enhance- ment of scenic beauty adjacent to such highways. Section 130 of the Surface Transportation and Uniform Relocation Assistance Act of 1987 amended 23 U.S.C. § 319 by adding a requirement that native wildflower seeds or seedlings or both be planted as part of any landscaping project undertaken on the federal-aid highway system. At least one-quarter of one percent of funds expended for a landscaping project must be used to plant native wildflowers on that project. This provision requires every landscaping project to include the planting of native wildflowers unless a waiver has been granted [Source: 23 U.S.C. § 319]. Implementing regulations may be found at 23 CFR Parts 650, 655, 662, and 752. Highway Beautification Act 23 U.S.C. §§ 131, 136, and 319.2. The Highway Beautification Act’s purpose is to provide effective control of outdoor advertising and junkyards, to protect the public investment, to promote the safety and rec- reational values of public travel and preserve natural beauty. The Act also provides landscapes and roadside develop- ment reasonably necessary to accommodate the traveling public. This Act applies to interstate and primary systems, as primary system existed on June 1, 1991, and the National Highway System [Sources: 23 U.S.C. §§ 131, 136, and 319]. Implementing regulations may be found at 23 CFR Parts 750-752. National Trails System Act 16 U.S.C. §§ 1241-1249. 3. The National Trails System Act made it federal policy to rec- ognize and promote trails by providing financial assistance, support of volunteers, coordination with states, and other authorities. As a result, 8 national scenic trails (NSTs) and 15 national historic trails (NHTs) have been established by

80 law (and are administered by the National Park Service, the USDA Forest Service, and the Bureau of Land Manage- ment, depending on the trail); over 800 national recreation trails have been recognized by the Secretaries of Agricul- ture and Interior; and 2 side-and-connecting trails have also been certified. In addition, other federal statutes support and fund trails through programs such as FHWA’s Recreational Trails Program and Transportation Enhancements programs, HUD block grants, and the NPS Rivers, Trails, and Conservation Assistance Program [Sources: 16 U.S.C. §§ 1241-1249]. Implementing regulations round at 36 CFR 251 and 43 CFR 8350. See also, the National Recreational Trails Fund Act of the Intermodal Surface Transportation Efficiency Act of 1991, 16 U.S.C. § 1261, which established the program to allocate funds to states to provide and maintain recreational trail and trail-related projects.