[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR777.11]

[Page 398-399]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 777--MITIGATION OF IMPACTS TO WETLANDS AND NATURAL HABITAT--Table of Contents
 
Sec. 777.11  Other considerations.

    (a) The development of measures proposed to mitigate impacts to 
wetlands or natural habitats shall include consultation with appropriate 
State and Federal agencies.
    (b) Federal-aid funds shall not participate in the replacement of 
wetlands or natural habitats absent sufficient assurances, such as, but 
not limited to, deed restrictions, fee ownership, permanent easement, or 
performance bond, that the area will be maintained as a wetland or 
natural habitat.
    (c) The acquisition of proprietary interests in replacement wetlands 
or natural habitats as a mitigation measure may be in fee simple, by 
easement, or by other appropriate legally recognized instrument, such as 
a banking instrument legally approved by the appropriate regulatory 
agency. The acquisition of mitigation credits in wetland or natural 
habitat mitigation banks shall

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be accomplished through a legally recognized instrument, such as 
permanent easement, deed restriction, or legally approved mitigation 
banking instrument, which provides for the protection and permanent 
continuation of the wetland or natural habitat nature of the mitigation.
    (d) A State DOT may acquire privately owned lands in cooperation 
with another public agency or third party. Such an arrangement may 
accomplish greater benefits than would otherwise be accomplished by the 
individual agency acting alone.
    (e) A State DOT may transfer the title to, or enter into an 
agreement with, an appropriate public natural resource management agency 
to manage lands acquired outside the right-of-way without requiring a 
credit to Federal funds. Any such transfer of title or agreement shall 
require the continued use of the lands for the purpose for which they 
were acquired. In the event the purpose is no longer served, the lands 
and interests therein shall immediately revert to the State DOT for 
proper disposition.
    (f) The reasonable costs of acquiring lands or interests therein to 
provide replacement lands with equivalent wetlands or natural habitat 
area or functional capacity associated with these areas are eligible for 
Federal participation.
    (g) The objective in mitigating impacts to wetlands in the Federal-
aid highway program is to implement the policy of a net gain of wetlands 
on a program wide basis.
    (h) Certain activities to ensure the viability of compensatory 
mitigation wetlands or natural habitats during the period of 
establishment are eligible for Federal-aid participation. These include, 
but are not limited to, such activities as repair or adjustment of water 
control structures, pest control, irrigation, fencing modifications, 
replacement of plantings, and mitigation site monitoring. The 
establishment period should be specifically determined by the mitigation 
agreement among the mitigation planners prior to beginning any 
compensatory mitigation activities.

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