Chapter 1 - Federal Requirements
- What Does this Topic Include?
- Federal Requirements Decision Tree
- Laws, Regulations, and Guidance
- Physical Environment
- Natural Environment
- Special Status Land Use
- Community Impacts
- Section 4(f) Guidance Documents
- Cultural Resources
- Secondary and Cumulative Impacts
- Purpose and Need
- Development of Project Alternatives
- Surface Transportation Reauthorization
- Additional Regulations, Policy, Guidance, and Resources
- Memoranda of Agreement (MOA)/Memoranda of Understanding (MOU)/Programmatic Agreements, including the NEPA/404 Integration MOU (April 2006)
- Emergency Projects: Environmental Processes and Requirements
What Does This Topic Include?
The Standard Environmental Reference (SER), Volume 1 (Vol. 1), Chapter 1, "Federal Requirements," sets forth the federal laws and regulations applicable to transportation projects including; executive orders, policy, guidance, directives, and advisories pertaining to the National Environmental Policy Act (NEPA) and related federal environmental laws as well as agreements pertaining to NEPA and Section 4(f) compliance. Agreements pertaining to other federal and state requirements may be found in specific topics in Vol. 1, and on the SER MOUs/MOAs page.
The Federal Highway Administration (FHWA) uses the "umbrella" approach to compliance in which all the related laws, regulations, and executive orders are addressed as part of the NEPA documentation. Refer to SER, Vol. 1, Chapter 30, "Categorical Exclusions," Chapter 31, "Environmental Assessment (EA) and Finding of No Significant Impact (FONSI)," Chapter 32, "Environmental Impact Statements," Chapter 33, "Reevaluations," Chapter 37, "Preparing Joint NEPA/CEQA Documentation," and Chapter 38, "NEPA Assignment" for detailed information on preparing and processing NEPA documentation.
Federal Requirements Decision Tree
View the NEPA Process Overview for FHWA or Caltrans Actions (PDF)
Laws, Regulations, and Guidance
- 40 Code of Federal Regulations (CFR) 1500 et seq.: Council on Environmental Quality Regulations for Implementing NEPA
- National Environmental Policy Act of 1969, as amended, 42 USC § 4321 et seq.
- Department of Transportation Act of 1966, Section 4(f)
- Federal-Aid Highway Act of 1970, 23 USC § 109, which addresses economic, social and environmental effects.
- Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991
- Transportation Efficiency Act for the 21st Century (TEA-21), PL 105-178
- Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), PL 109-59
- Moving Ahead for Progress in the 21st Century Act (MAP-21), PL 112-141
- Fixing America’s Surface Transportation Act (FAST Act), P.L.114-94
- Executive Order 13807: Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure (“One Federal Decision”), August 15, 2017
- Freedom of Information Act (5 USC § 552)
- Clean Air Act Amendments of 1990 (CAAA)
- Clean Water Act of 1977 and 1987
- Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA)
- Federal Water Pollution Control Act of 1972 (see Clean Water Act of 1977 & 1987)
- Federal Insecticide, Fungicide, and Rodenticide Act
- Federal Land Policy and Management Act (FLPMA) of 1976, as amended
- Hazardous and Solid Waste Amendments (HSWA) of 1984 (see Resource Conservation and Recovery Act of 1976)
- Noise Control Act of 1972
- Pollution Prevention Act of 1990
- Resource Conservation and Recovery Act of 1976 (RCRA)
- Safe Drinking Water Act of 1944, as amended
- Solid Waste Disposal Act (see Resource Conservation and Recovery Act of 1976 [RCRA])
- Superfund Amendments and Reauthorization Act (SARA) of 1986 (see Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended [CERCLA])
- Emergency Wetlands Resources Act of 1986
- Endangered Species Act of 1973
- Executive Order 11990, Protection of Wetlands (May 24, 1977)
- Executive Order 12962, Recreational Fisheries (June 7, 1995)
- Executive Order 13112, Invasive Species (February 3, 1999)
- Executive Order 13186, Migratory Birds (January 10, 2001)
- Fish and Wildlife Coordination Act of 1934, as amended
- Magnuson-Stevens Fishery Conservation and Management Act of 1976, as amended
- Marine Mammal Protection Act of 1972, as amended
- Marine Protection, Research, and Sanctuaries Act of 1972, as amended
- Migratory Bird Treaty Act of 1918, as amended
- Water Bank Act
- Wetlands Mitigation Banks - ISTEA 1991, Sections 1006-1007
- Wildflowers, Surface Transportation and Uniform Relocation Act of 1987 Section 130
Special Status Land Use
- Coastal Zone Management Act of 1972
- Coastal Zone Management Act Reauthorization Amendments of 1990
- Executive Order 11988, Floodplain Management (May 24, 1977)
- Flood Disaster Protection Act
- U.S. Department of Transportation (USDOT) Order 5650.2 - Floodplain Management and Protection (April 23, 1979)
- Land and Water Conservation Fund Act of 1964, as amended, Section 6(f)
- National Trails System Act
- Rivers and Harbors Appropriation Act of 1899, Sections 9 and 10
- Wild and Scenic Rivers Act of 1968, as amended
- Wilderness Act of 1964
- 23 USC § 128: Public Hearings
- American Indian Religious Freedom Act of 1978
- Executive Order 12898 - Environmental Justice (February 11, 1994)
- Executive Order 13166 - Improving Access to Services for Persons with Limited English Proficiency (August 11, 2000)
- Farmland Protection Policy Act of 1981
- Title VI of the Civil Rights Act of 1964, as amended
- Uniform Relocation Assistance and Real Property Acquisition Act of 1970, as amended
Section 4(f) Guidance Documents - See Department of Transportation Act of 1966, Section 4(f) below
- Act for the Preservation of American Antiquities (1906) (“Antiquities Act”)
- Archaeological and Historical Preservation Act of 1974
- Archaeological Resources Protection Act of 1979
- Executive Order 11593 - Protection and Enhancement of Cultural Environment (May 13, 1971)
- Executive Order 13007 - Indian Sacred Sites (May 24, 1996)
- Executive Order 13287 - Preserve America (March 3, 2003)
- Historic Bridges, Surface Transportation and Uniform Relocation Act of 1987 Section 123(f)
- Historic Sites Act of 1935
- National Historic Preservation Act of 1966, as amended (Section 106)
- Native American Graves Protection and Repatriation Act of 1990
- Reservoir Salvage Act of 1960
Secondary and Cumulative Impacts
- Guidance for Preparers of Cumulative Impact Analysis
- Guidance for Preparers of Growth-related, Indirect Impact Analysis (May 2006)
- Considering Cumulative Effects Under the National Environmental Policy Act (Council on Environmental Quality, January (1997)
- Questions and Answers Regarding the Consideration of Indirect and Cumulative Impacts in the NEPA Process (FHWA)
- Position Paper: Secondary and Cumulative Impact Assessment in the Highway Project Development Process, (FHWA April 1992)
- Consideration of Cumulative Impacts in EPA Review of NEPA Documents (PDF) (U.S. EPA, May 1999)
Purpose and Need
- NEPA and Transportation Decisionmaking, "The Importance of Purpose and Need in Environmental Documents" (FHWA, September 18, 1990)
- NEPA and Transportation Decisionmaking, "Elements of Purpose and Need" (FHWA)
- Caltrans Purpose and Need Team Report and Recommendations (July 2003)
- FHWA/FTA Joint Guidance on Purpose and Need, July 23, 2003
- NEPA and Transportation Decisionmaking, Development of Logical Termini (FHWA, November 5, 1993)
- SAFETEA-LU Environmental Review Process
- AASHTO Practitioner’s Handbook
Development of Project Alternatives
- NEPA and Transportation Decisionmaking, Development and Evaluation of Alternatives (FHWA)
- Forty Most Asked Questions CEQ's NEPA Regulations (CEQ Memorandum, March 16, 1981) (PDF) (See Questions 1 through 6, which address range of alternatives; alternatives outside the capability of applicant or jurisdiction of agency; no-action alternative; agency’s preferred alternative; proposed action v. preferred alternative; and environmentally preferable alternative.)
- CEQ Regulations, "Alternatives including the proposed action" (40 CFR §1502.14)
- Alternatives Analysis Frequently Asked Questions
For additional information on project alternatives, please see Section 4(f) Guidance Documents, Clean Water Act of 1977 & 1987, Executive Order 11988 (Floodplain Management), and Executive Order 11990 (Protection of Wetlands)
Surface Transportation Reauthorization
- FHWA's Surface Transportation Reauthorization website, which includes the report "Funding Federal-Aid Highways"
- Center for Climate and Energy Solutions' "A Primer on Federal Surface Transportation Reauthorization and the Highway Trust Fund" (PDF)
Additional Regulations, Policies, Guidance, and Resources
- One Federal Decision – FHWA Environmental Review Toolkit
- Executive Office of the President–Office of Management and Budget and Council on Environmental Quality Joint Memorandum M-19-11 "Guidance on the Applicability of E.O. 13807 to States with NEPA Assignment Authority Under the Surface Transportation Project Delivery Program," February 26, 2019 (PDF) (233 KB)
- USDOT Questions and Answers on the procedural changes to 23 U.S.C. 139 made by FAST Act
- FHWA Planning and Environment Linkages (PEL) Guidance
- 23 USC § 134 Metropolitan Transportation Planning
- 23 USC § 135 Statewide Transportation Planning
- Caltrans Regional Planning
- FHWA California Division Environmental Checklist "Draft" Environmental Documents
- FHWA California Division Environmental Checklist "Final" Environmental Documents
- 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.
- Significance of Impacts
- Technical Advisory T6640.8A, Guidance for Preparing and Processing Environmental and Section 4(f) Documents, October 30, 1987 (FHWA)
- Public Involvement Techniques for Transportation Decision-Making (FHWA/FTA, June 2015)
- Director's Title VI Statement
- Incorporating Biodiversity Considerations into Environmental Impact Analysis Under NEPA (Council on Environmental Quality, 1993)
- Considering Ecological Processes in Environmental Impact Assessment (U.S. EPA, 1999) (PDF)
- FHWA Policy on Brownfield Development (FHWA Memorandum, March 4, 1998)
- FHWA "Flexibility in Highway Design"
- FHWA/FTA Revised Environmental Review Process Guidance for Public Comment
- In-Depth Questions and Answers on the changes to 23 U.S.C. § 139 as they relate to FHWA, FRA, and FTA projects
- Interim Guidance on MAP-21 Section 1319 Accelerated Decisionmaking in Environmental Reviews
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).
- Text of codified law: 42 USC § 1996 (PL 95-341)
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).
- Notify the Department of Interior (DOI - NPS) when a federal project may result in the loss or destruction of a historic or archaeological property.
- DOI and/or FHWA may undertake survey or data recovery.
Coordination and Consultation: Department of Interior (NPS) Department Archaeologist, State Historic Preservation Officer
- Text of codified law: 16 USC § 431-433 (PL 59-209)
- Regulations: 36 CFR 296 et seq.; 43 CFR 3
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 one 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) provide similar protection, so Moss-Bennett is not applied on FHWA projects.
- Text of codified law: 16 USC § 469 (PL 96-95)
- Regulations: 36 CFR 296
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.
- Text of codified law: 16 USC § 470aa et seq.
- Regulations governing various federal agency permitting requirements: 32 CFR 229, 43 CFR 7
Clean Air Act Amendments of 1990
Purpose: Authorizes the U.S. Environmental Protection Agency (U.S. EPA) 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: Metropolitan Planning Organizations (MPOs), U.S. EPA, and California Air Resources Board.
- Text of codified law: Clean Air Act (42 USC Chapter 85)
- Clean Air Act Amendments of 1990 (42 USC § 7401 et seq.)
- Clean Air Act Conformity requirements:(42 USC § 7506)
- Sanctions for non-compliance with Clean Air Act requirements: (42 USC § 7509)
- U.S. EPA Transportation Conformity Regulations (40 CFR 93)
- U.S. EPA Office of Air and Radiation
- Requirements for Preparation, Adoption, and Submittal of Implementation Plans: (40 CFR 51)
- Determining Conformity of Federal Actions to State or Federal Implementation Plans – Excerpts from 40 CFR 93:
- Section 93.101 (Definitions)
- Section 93.104(d) (Frequency of Conformity Determinations)
- Section 93.105 (Consultation)
- Section 93.109 (Criteria and Procedures for Determining Conformity of Transportation Plans, Programs, and Projects: General)
- Section 93.113.d (Timely Implementation of TCMs)
- Section 93.116 (Criteria and Procedures: Localized CO, PM10, and PM2.5 Violations (Hot-Spots))
- Section 93.117 (Criteria and Procedures: Compliance with PM10 and PM2.5 Control Measures)
- Section 93.123 (Hot-Spot Analysis)
- Section 93.125 (Enforceability of Design Concept and Scope and Project-Level Mitigation and Control Measures)
- Section 93.126 (Exempt Projects)
- Section 93.127 (Projects Exempt from Regional emissions Analyses)
- Section 93.128 (Traffic Signals Synchronization Projects)
- U.S. EPA "NESHAP" Air Toxic Regulations - Asbestos (40 CFR 61, Subpart M)
- National Ambient Air Quality Standards for California Area Designations (40 CFR 81.305)
- Updated Interim Guidance on Mobile Source Air Toxic Analysis in NEPA Documents
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.
- Obtain Section 404 permit for dredge or fill materials from Army Corps of Engineers (USACE).
- Permits (National Pollutant Discharge Elimination System [NPDES] permit) for all other discharges are obtained from U.S. EPA or appropriate state agency, which in most cases is the appropriate Regional Water Quality Control Board (Section 402).
- Water quality certification is required from the appropriate Regional Water Quality Control Board (Section 401).
- All projects must be consistent with the state Non-point Source Pollution Management Program (Section 319).
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 Department 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 (23 CCR § 3830-3869) for the 401 Water Quality Certification Program 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 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.
Section 404 of the Clean Water Act establishes a permit program administered by the USACE 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)
Coordination and Consultation: USACE, U.S. EPA, State Water Resources Control Board, Regional Water Quality Control Boards.
The Clean Water Act amended the federal Water Pollution Control Act of 1972.
- Text of codified law: 33 USC § 1251
- Text of codified law: 33 USC § 1344 (Section 404)
- FHWA regulations on "Erosion And Sediment Control On Highway Construction Projects" (23 CFR 650 Subpart B)
- Army Corps of Engineers implementing regulations, 33 CFR 209, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330
- Army Corps of Engineers implementing regulations, Section 404, 33 CFR 323
- U.S. EPA implementing regulations, 40 CFR 123, 124, 125, 129, 130, 131, 133, 135, 136, 230, 231
- U.S. EPA implementing regulations, "Section 404(b)(1) Guidelines," 40 CFR 230
Coastal Zone Management Act of 1972
Purpose: Preserve, protect, develop, and where possible, restore and enhance resources of the coastal zone.
Applicability: All federal development activities and development requiring federal permits or funding affecting land or water areas or resources within the coastal zone and subject to the Coastal Zone Management Act (CZMA) of 1972.
General Procedures: The CZMA sets up a program under which coastal states are encouraged to develop coastal zone management programs. The National Oceanic and Atmospheric Administration (NOAA) is the federal agency responsible for approving the states' coastal zone management program and overseeing their subsequent implementation. States with an approved coastal zone management program are able to review federal permits and activities to determine if they are consistent with the state's management plan. A certification 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 or the San Francisco Bay Conservation and Development Commission (BCDC).
Coordination and Consultation: State Coastal Commission, BCDC, local agency, U.S. EPA, National Oceanic and Atmospheric Administration.
- Text of codified law: 16 USC § 1451-1464 (PL 92-583, 94-370, 96-464)
- Regulations: 15 CFR 923, 930
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 CZMP, or the Bay Conservation and Development Commission (BCDC).
General Procedures: Ensure projects comply with CZMPs for controlling non-point sources.
Coordination and Consultation: State Coastal Commission, local government administering an approved CZMP, BCDC, National Oceanic and Atmospheric Administration, U.S. EPA.
- Regulations: 23 CFR 650.211
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, U.S. EPA was given power to seek out those parties responsible for any release and assure their cooperation in the cleanup.
The U.S. EPA cleans up orphan sites when potentially responsible parties cannot be identified or located, or when they fail to act. Through various enforcement tools, U.S. EPA obtains private party cleanup through orders, consent decrees, and other small party settlements. The U.S. EPA also recovers costs from financially viable individuals and companies once a response action has been completed.
The U.S. 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 U.S. EPA or California Environmental Protection Agency will aid in identifying known or potential hazardous waste sites.
Coordination and Consultation: U.S. EPA or Department of Toxic Substances Control.
- Text of codified law: 42 USC § 9601-9675
- Regulations: (40 CFR 300 and 43 CFR 11)
Council on Environmental Quality Regulations, 40 CFR 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.
- CEQ regulations (40 CFR 1500-1508)
- Forty Most Asked Questions Concerning CEQ's NEPA Regulations (CEQ Memorandum, March 16, 1981) (PDF)
- Council on Environmental Quality (CEQ) Guidance
- Guidance Regarding NEPA regulations (CEQ memorandum, 1983) - PDF (56 KB)
- Scoping Guidance (CEQ's memorandum, April 30, 1981)
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 U.S. Department of Transportation action (USDOT) 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:
- There is no prudent and feasible alternative to using that land; and
- 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, Department of Housing and Urban Development, state or local agencies having jurisdiction over the resources, and the State Historic Preservation Officer for historic sites.
- FHWA Technical Advisory T6640.8A, Guidance for Preparing and Processing Environmental and Section 4(f) Documents (October 30, 1987)
- SER, Vol. 1, Chapter 20 - Section 4(f) and Related Requirements
- 23 CFR 774: Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites
- 23 USC § 138: Preservation of Parklands
- Section 4(f) Policy Paper (FHWA, July 20, 2012)
- Guidance for Applying the 4(f) Exemption for the Interstate Highway System (FHWA memorandum, January 13, 2006)
- Questions and Answers on the Exemption for the Interstate Highway System (FHWA)
- Text of codified law: 49 USC § 303 and 23 USC § 138 (PL 110-17, PL 97-449, PL 86-670)
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.
- Preparation of a national wetlands priority conservation plan which provides priority with respect to federal and state acquisition.
- Provide direction for the national wetlands inventory.
There are no regulations implementing this law.
Coordination and Consultation: U.S. Fish and Wildlife Service
- Text of codified law: 16 USC § 3901 (PL 99-645)
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 ensure 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 National Marine Fisheries Service (NOAA Fisheries) share responsibilities for administering the Act.
Coordination and Consultation: USFWS, NOAA Fisheries
The Endangered Species Act of 1973 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 ensure 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 USFWS and NOAA Fisheries share responsibilities for administering the Act. Regulations governing interagency cooperation under Section 7 are found at 50 CFR Part 402. 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 for species under the jurisdiction of USFWS and 50 CFR Parts 217, 220 and 222 for species under the jurisdiction of NOAA Fisheries.
- Text of codified law: 16 USC § 1531-1543
- Regulations: 50 CFR 402
- Application procedures (USFWS): 50 CFR 13 and 50 CFR 17.
- Application procedures (NOAA Fisheries) 50 CFR 217, 220 and 222
Executive Order 11593, Protection and Enhancement of Cultural Environment (May 13, 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.
- Text of Executive Order: Executive Order 11593
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.
- Assessment of floodplain hazards.
- Specific finding required in final environmental document for significant encroachments.
Coordination and Consultation: Federal Emergency Management Agency, state and local agencies
- Text of codified law: Executive Order 11988
- Regulations: 23 CFR 650, Subpart A
- Refer to DOT Order 5650.2 - Floodplain Management and Protection (April 23, 1979) (PDF)
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 be 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 FHWA provides technical assistance in meeting these criteria and reviews environmental documents for compliance.
Coordination and Consultation: USFWS, U.S. EPA, USACE, NOAA Fisheries, Natural Resources Conservation Service, state agencies.
- Executive Order 11990
- 23 CFR 777 (Privately-owned wetlands)
Executive Order 12898, Environmental Justice (February 11, 1994)
Purpose: Executive Order 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.
- Executive Order 12898
- DOT Order on Environmental Justice 5680.1: Final Order To Address Environmental Justice in Minority Populations and Low-Income Populations (PDF) (148 KB) (Superseded by DOT Order 5610.2[a] (PDF))
- FHWA Order 6640.23 "FHWA Actions to Address Environmental Justice in Minority Populations and Low-Income Populations" December 2, 1998 (Cancelled by FHWA Order 6640.23A June 14, 2012.)
- Guidance on Environmental Justice and NEPA (FHWA Memorandum, December 16, 2011)
- Environmental Justice: Guidance under the National Environmental Policy Act (Council on Environmental Quality, December 10, 1997
- Caltrans SER, Vol. 4, Community Impact Assessment
Executive Order 12962, Recreational Fisheries (June 7, 1995)
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
Executive Order 13007, Indian Sacred Sites (May 24, 1996)
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 the Department and local agencies when dealing with federal land-managing agencies such as the U.S. 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.
- Text of Executive Order 13007 (May 1996)
Executive Order 13112, Invasive Species (February 3, 1999)
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. This order was signed February 3, 1999 and 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: Under the EO 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 Executive Order 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.
- Executive Order 13112 (amended by EO 13286)
- FHWA Guidance on Invasive Species (August 10, 1999)
Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency (August 11, 2000)
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.
Applicability: All federal agencies and recipients of federal funds, including all federal USDOT administrations, state DOTs, MPOs, and transit operators, among others.
General Procedures: Use the USDOT Guidance (below), Caltrans SER Vol. 4, Community Impact Assessment and Caltrans Project Development Procedures Manual, Chapter 11, "Public Hearing."
Coordination and Consultation: FHWA
Executive Order 13186, Migratory Birds (January 10, 2001)
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 U.S. Fish and Wildlife Service (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: Migratory Bird Treaty Act and Executive Order 13186 (FHWA, February 2, 2001) (PDF)
Coordination and Consultation: USFWS
- Text of Executive Order 13186
Executive Order 13287, Preserve America (March 3, 2003)
Purpose: To enhance the use of historic properties owned by the federal government by encouraging public/private partnerships.
Applicability: The order is applicable to all federal agencies. It would have likely have limited effect on Department projects because few historic properties affected by Department projects are owned by a federal agency.
Coordination and Consultation: Federal agencies
- Text of Executive Order 13287
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.
- Early coordination with the Natural Resources Conservation Service.
- Land evaluation and site assessment.
- Determination of whether to proceed with farmland conversion, based on severity of impacts and other environmental considerations.
Coordination and Consultation: Natural Resources Conservation Service
Federal-Aid Highway Act of 1970 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.
- Text of statute: 23 USC § 109(h) (PL 91-605)
- 23 USC § 128
- 23 CFR 771, Environmental Impact and Related Procedures
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: U.S. EPA
- Text of statute: 7 USC § 136
- Regulations 40 CFR 152-171: refer to Subchapter E
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.
- Text of statute: 43 USC § 1701-1782
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 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 and California Department of Fish and Wildlife (CDFW)
- Text of statute: 16 USC § 661-666 (click on "next" to go to next section.)
Fixing America’s Surface Transportation Act (FAST Act)
Flood Disaster Protection Act
Purpose: Identify flood-prone areas and provide insurance. Requires the 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.
- Text of statute: 42 USC § 4001-4128
- Regulations and orders: DOT Order 5650.2 (PDF) (3.34 MB), 23 CFR 650 Subpart A, and 23 CFR 771
Freedom of Information Act (5 USC § 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.
- Text of statute: 5 USC § 552
Surface Transportation and Uniform Relocation Act of 1987, Section 123(f), Historic Bridges
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 in, or eligible for listing in, the National Register of Historic Places.
- Identify historic bridges on and off system
- Seek to preserve of reduce impact to historic bridges
- Seek a recipient prior to demolition
Coordination and Consultation: State Historic Preservation Officer. The Department updated the original (1986) California Historic Bridge Inventory in 2015. The Inventory can be found online at https://dot.ca.gov/programs/maintenance/structure-maintenance-investigations. Please contact the Department District Heritage Resources Coordinator, District Local Assistance Engineer, or the Department's HQ Cultural Studies Office for further information on the Inventory.
- Text of statute: 23 USC § 144 (o) (PL 100-17), scroll to subsection "o"
Historic Sites 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.
- Text of statute: 16 USC § 461-471
- Regulations: 36 CFR 62 National Natural Landmarks Program
Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, PL 102-240
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 that originated in ISTEA have been continued or expanded in subsequent surface transportation legislation - the Transportation Efficiency Act for the 21st Century (TEA-21), the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), and the Moving Ahead for Progress in the 21st Century Act (MAP-21).
- Text of statute: PL 102-240 (Dec. 18, 1991)
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 (NPS), state agencies.
- Regulations: 36 CFR 59
- Refer to 16 USC § 460l - 8(f) (PL 88-578) (Note: 460"l" is lower case "L")
Magnuson-Stevens Fishery Conservation and Management Act of 1976, as Amended
Purpose: To take immediate action to conserve and manage the fishery resources found off the coasts of the United States, and the anadromous species and Continental Shelf fishery resources of the United States, by exercising (A) sovereign rights for the purposes of exploring, exploiting, conserving, and managing all fish within the exclusive economic zone established by Presidential Proclamation 5030, dated March 10, 1983, and (B) exclusive fishery management authority beyond the exclusive economic zone over such anadromous species, Continental Shelf fishery resources and fishery resources in the special areas.
Applicability: To assess essential fish habitat in the review of projects conducted under federal permits, licenses, or other authorities that affect or have the potential to affect such habitat.
General Procedures: The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) requires federal agencies such as the FHWA, and the Department through NEPA Assignment, to consult with the Secretary of Commerce regarding any action or proposed action authorized, funded, or undertaken by that agency that may adversely affect essential fish habitat (EFH), as identified under the MSFCMA. Federal agencies may use existing consultation/environmental review procedures, such as biological assessments, to satisfy the MSFCMA consultation requirements.
Coordination and Consultation: NOAA Fisheries. See consultation information link below.
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 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.
- Text of statute: 16 USC § 1361 et seq.
- Regulations: 50 CFR SUBPART I, General Regulations Governing Small Takes of Marine Mammals Incidental to Specified Activities Part 216.101 et seq.
- NOAA Fisheries guidance: National Oceanic and Atmospheric Administration
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 Sanctuaries 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: USACE (if dredge material)
- Text of statute: 33 USC § 1401 et seq. (PL 92-532, PL 93-254, PL 96-572)
- Regulations for Ocean Dumping: 33 CFR 320 and CFR 330; 40 CFR 220-225, 227-228
- Regulations for 404 permits: USACE 40 CFR 230 and 40 CFR 231
- Nationwide Permit Program: 33 CFR 330
Migratory Bird Treaty Act of 1918, as Amended
This law implements various treaties between the United States and Canada, Mexico, the 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.
- Text of statutes: 16 USC § 703-711
Moving Ahead for Progress in the 21ST Century Act (MAP-21), PL 112-141
MAP-21 stands for the Moving Ahead for Progress in the 21st Century Act (PL 112-141) and was signed into law by President Obama on July 6th, 2012. The MAP-21 authorizes the federal surface transportation programs for highways, highway safety, and transit and provides funding of over $105 billion for the federal fiscal years (FY) 2013 and 2014. It covers a variety of transportation related issues including financing, state and metropolitan transportation planning, congestion relief, improved safety, expedited project delivery, consolidation of federal programs, goods movement, and transportation related research and studies.
California participated in the "Surface Transportation Project Delivery Pilot Program" (Pilot Program) pursuant to 23 USC § 327 and established by SAFETEA-LU, for more than five years, beginning July 1, 2007 and ending September 30, 2012. MAP-21 amended 23 USC § 327 to establish a revised and permanent Surface Transportation Project Delivery Program. As a result, the Department entered into a Memorandum of Understanding pursuant to 23 USC § 327 (NEPA Assignment MOU) with FHWA. The NEPA Assignment MOU became effective October 1, 2012 and terminates eighteen months from the effective date of FHWA regulations developed to clarify amendments to 23 USC § 327 or on January 1, 2017. The NEPA Assignment MOU incorporates by reference the terms and conditions of the Pilot Program MOU. In summary, the Department continues to assume FHWA responsibilities under NEPA and other federal environmental laws in the same manner as was assigned under the Pilot Program, with minor changes.
MAP-21 also makes further amendments to the efficient environmental review process added by SAFETEA-LU and codified at 23 USC § 139.
- Efficient Environmental review process. The environmental review process mandated by 23 USC § 139 applies to EIS documents for which a Notice of Intent (NOI) was issued after August 10, 2005. In summary, MAP-21 added the following:
- Lead agencies must develop a coordination plan for public and agency participation and comment during the environmental review process. Note: If a schedule is developed as part of the coordination plan, then participating agency concurrence is required.
- FHWA may issue a 150-day statute of limitations (SOL) on claims against USDOT and other federal agencies for certain environmental and other approval actions. The 150-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.
National Environmental Policy Act of 1969, as Amended
Purpose: This act 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 USC § 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.
- Text of statute: 42 USC § 4321 et seq. (PL 91-190, PL 94-83)
- CEQ regulations
- 23 CFR 771, Environmental Impact and Related Procedures
- 23 USC 139, Efficient Environmental Reviews for Project Decisionmaking
- Forty Most Asked Questions Concerning CEQ's NEPA Regulations (CEQ Memorandum, March 16, 1981) (PDF)
- FHWA Technical Advisory T6640.8A, Guidance for Preparing and Processing Environmental and Section 4(f) Documents, October 30, 1987
- FHWA Guidebook
- FHWA Transportation Planning Requirements and Their Relationship to NEPA Process Completion, January 28, 2008
- FHWA Supplement to the January 28, 2008 “Transportation Planning Requirements and Their Relationship to NEPA Process Completion” February 9, 2011
- FHWA Clarifying Fiscal Constraint Guidance, May 15, 2017 (PDF)
- FHWA Memorandum: Additional Flexibilities in Categorical Exclusions, May 22, 2017
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 National Historic Preservation Act (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 in the National Register of Historic Places.
- Identify and determine the effects of project on subject properties.
- Afford the Advisory Council on Historic Preservation (ACHP) an early opportunity to comment in accordance with 36 CFR 800.
- Avoid or mitigate adverse effects to the greatest extent possible.
Coordination and Consultation: State Historic Preservation Officer, Native American Tribes, ACHP, NPS
- Text of statute: 54 USC § 300101 et seq. (PDF)
- ACHP regulations: 36 CFR 800 - revised 2004
- National Register Criteria for Evaluation: 36 CFR 60
- Determination of Eligibility: 36 CFR 63
- Executive Order 11593, "Protection and Enhancement of the Cultural Environment"
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.
- Apply for right-of-way easement from the Secretary of Interior or Agriculture, as appropriate.
- Ensure that potential trail properties are made available for use as recreational and scenic trails.
Coordination and Consultation: NPS, USFS, other federal land management agencies may apply for designation.
- Text of statute: 16 USC § 1241-1249
- Regulations: 36 CFR 251 and 43 CFR 8350
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
- Text of statute: 25 USC § 3001-3013
- Regulations: 43 CFR 10
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.
- Noise impact analysis
- Analysis of abatement measures
- Incorporate reasonable and feasible noise abatement measures to reduce or eliminate noise impact
- Text of statute: 42 USC § 4901 et seq.
- FHWA regulations required by Section 109(i) of the Federal-Aid Highway Act of 1970: 23 CFR 772
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.
- Text of statute: 42 USC § Chapter 133
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 have been held (or the opportunity for them has been offered) and must submit a hearing transcript to FHWA.
Coordination and Consultation: Appropriate federal, state, and local agencies.
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.
- Text of statute: 16 USC § 469
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 U.S. 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 U.S. 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 acquires 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 U.S. 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: U.S. EPA, California Environmental Protection Agency.
- SER Vol. 1, Chapter 10, "Hazardous Materials, Hazardous Waste, and Contamination"
- Text of statute: 42 USC § 6901 et seq. (PL 94-580, PL 98-616)
- Regulations: 40 CFR 260-271 (Scroll down to 260)
- Regulations: 23 CFR 751 (Junkyard Control and Acquisition)
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, or 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 susceptible to use in their natural condition or by reasonable improvements as means to transport interstate or foreign commerce. The USACE 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 States 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 (USCG), USACE, U.S. EPA, state agencies. Section 9 of the Rivers and Harbors Appropriations Act is administered by the USCG. Section 10 of the Rivers and Harbors Appropriations Act is administered by the USACE.
- Text of statute: 33 USC § 401 et seq., as amended and supplemented
- Text codifying: Section 9
- Text codifying: Section 10
- Regulations: 23 CFR 650 - Subpart D, Highway Bridge
- Regulations: 23 CFR 650 - Subpart H, Navigational Clearances for Bridges
- 33 CFR 114 and 33 CFR 115
- USCG/FHWA MOU on Implementing NEPA
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 U.S. EPA and FHWA covering specific sole source aquifers.
Coordination and Consultation: This act requires coordination with U.S. EPA when an area designated as a principal or sole source aquifer may be impacted by a proposed project. The U.S. EPA will furnish information on whether any of the alternatives affect the aquifer and may cause potential impacts to the critical aquifer protection area.
The U.S. EPA has designated the following sole source aquifers: Campo-Cottonwood, Fresno, Ocotillo-Coyote Wells, Santa Margarita, and Scotts Valley.
- Text of statute: 42 USC § 300(f) et seq. (PL 93-523, PL 99-339)
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), PL 109-59
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) is the transportation funding act that was signed by President George W. Bush on August 10, 2005. SAFETEA-LU authorized the federal surface transportation programs for highways, highway safety, and transit for the 5-year period from 2005-2009. It covered 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 included a number of changes aimed at streamlining the environmental review process.
Transportation Efficiency Act for the 21st Century (TEA-21), PL 105-178
The Transportation Equity Act for the 21st Century (TEA-21) was enacted June 9, 1998 as PL 105-178. This Act authorized the federal surface transportation programs for highways, highway safety, and transit for the 6-year period 1998-2003.
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.
- Text of statute: 42 USC § 2000 (d) et seq.
- Regulations: 49 CFR 21 and 23 CFR 200
- Director's Title VI Policy Statement - To be included in NEPA documents.
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, provide for uniform and equitable treatment of persons displaced from their homes, businesses, non-profit associations, or farms by federal and federally-assisted programs, and establish 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.
Department 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 Document or Memorandum. A Draft Relocation Impact Document or Memorandum is prepared by Right of Way to support the Draft Environmental Document and a Final Relocation Document or Memorandum 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.
- Text of statute: 42 USC § Chapter 61 (PL 91-646, PL 100-17)
- Regulations: 49 CFR 24
- Caltrans SER Vol. 4, Community Impact Assessment
Water Bank Act
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
- Text of statute: 16 USC Chapter 29
- Regulation: 7 CFR 752
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: USFWS, U.S. EPA, USACE, NOAA Fisheries, Natural Resources Conservation Service, state agencies.
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., U.S. Forest Service, BLM, and the NPS). River segments flowing through private lands are administered by the California Natural Resources Agency in conjunction with local government agencies.
Coordination and Consultation: On projects that affect designated rivers or their immediate environments, the Department 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.
- Text of statute: 16 USC Chapter 28
- Regulations: 36 CFR 251, 36 CFR 297, 43 CFR 8350
- Caltrans SER Vol. 1, Chapter 19, “Wild and Scenic Rivers”
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.
- Text of statute: 16 USC Chapter 23
- Regulations: 36 CFR 251, 36 CFR 293, 43 CFR 19, 43 CFR 6300, and 50 CFR 35
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
- Text of statute: 23 USC § 319(b)
- Regulation: 23 CFR 752.4