[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: 23CFR777.2]

[Page 395-396]
 
                           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. 777.2  Definitions.

    In addition to those contained in 23 U.S.C. 101(a), the following 
definitions shall apply as used in this part:
    Biogeochemical transformations means those changes in chemical 
compounds and substances which naturally occur in ecosystems. Examples 
are the carbon, nitrogen, and phosphorus cycles in nature, in which 
these elements are incorporated from inorganic substances into organic 
matter and recycled on a continuing basis.
    Compensatory mitigation means restoration, enhancement, creation, 
and under exceptional circumstances, preservation, of wetlands, wetland 
buffer areas, and other natural habitats, carried out to replace or 
compensate for the loss of wetlands or natural habitat area or 
functional capacity resulting from Federal-aid projects funded pursuant 
to provisions of title 23, U.S. Code. Compensatory mitigation usually 
occurs in advance of or concurrent with the impacts to be mitigated, but 
may occur after such impacts in special circumstances.
    Mitigation bank means a site where wetlands and/or other aquatic 
resources or natural habitats are restored, created, enhanced, or in 
exceptional circumstances, preserved, expressly for the purpose of 
providing compensatory mitigation in advance of authorized impacts to 
similar resources. For purposes of the Clean Water Act, Section 404 (33 
U.S.C. 1344), use of a mitigation bank can only be authorized when 
impacts are unavoidable.
    Natural habitat means a complex of natural, primarily native or 
indigenous vegetation, not currently subject to cultivation or 
artificial landscaping, a primary purpose of which is to provide habitat 
for wildlife, either terrestrial or aquatic. For purposes of this part, 
habitat has the same meaning as natural habitat. This definition 
excludes rights-of-way that are acquired with Federal transportation 
funds specifically for highway purposes.
    Net gain of wetlands means a wetland resource conservation and 
management principle under which, over the long term, unavoidable losses 
of wetlands area or functional capacity due to highway projects are 
offset by gains at a ratio greater than 1:1, through restoration, 
enhancement, preservation, or creation of wetlands or associated areas 
critical to the protection or conservation of wetland functions. This 
definition specifically excludes natural habitat, as defined in this 
section, other than wetlands.
    On-site, in-kind mitigation means compensatory mitigation which 
replaces wetlands or natural habitat area or functions lost as a result 
of a highway project with the same or like wetland or habitat type and 
functions adjacent or contiguous to the site of the impact.
    Practicable means available and capable of being done after taking 
into consideration cost, existing technology, and logistics, in light of 
overall project purposes.
    Service area of a mitigation bank means that the service area of a 
wetland or natural habitat mitigation bank shall be consistent with that 
in

[[Page 396]]

the Federal Guidance for the Establishment, Use and Operation of 
Mitigation Banks (60 FR 58605, November 28, 1995), i.e., the designated 
area (e.g., watershed, county) wherein a bank can be expected to provide 
appropriate compensation for impacts to wetlands and/or other aquatic or 
natural habitat resources.
    Wetland or habitat enhancement means activities conducted in 
existing wetlands or other natural habitat to achieve specific 
management objectives or provide conditions which previously did not 
exist, and which increase one or more ecosystem functions. Enhancement 
may involve tradeoffs between the resource structure, function, and 
values; a positive change in one may result in negative effects to other 
functions. Examples of activities which may be carried out to enhance 
wetlands or natural habitats include, but are not limited to, alteration 
of hydrologic regime, vegetation management, erosion control, fencing, 
integrated pest management and control, and fertilization.
    Wetland or habitat establishment period means a period of time 
agreed to by the FHWA, State DOT, and U.S. Army Corps of Engineers, as 
necessary to establish wetland or natural habitat functional capacity in 
a compensatory mitigation project sufficient to compensate wetlands or 
habitat losses due to impacts of Federal-aid highway projects. The 
establishment period may vary depending on the specific wetland or 
habitat type being developed.
    Wetland or habitat functional capacity means the ability of a 
wetland or natural habitat to perform natural functions, such as provide 
wildlife habitat, support biodiversity, store surface water, or perform 
biogeochemical transformations, as determined by scientific functional 
assessment. Natural functions of wetlands include, but are not limited 
to, those listed by the U.S. Army Corps of Engineers at 33 CFR 
320.4(b)(2)(i) through (viii).
    Wetland or habitat preservation means the protection of ecologically 
important wetlands, other aquatic resources, or other natural habitats 
in perpetuity through the implementation of appropriate legal and 
physical mechanisms. Preservation of wetlands for compensatory 
mitigation purposes may include protection of upland areas adjacent to 
wetlands as necessary to ensure protection and/or enhancement of the 
aquatic ecosystem.
    Wetland or habitat restoration means the reestablishment of wetlands 
or natural habitats on a site where they formerly existed or exist in a 
substantially degraded state.
    Wetland or wetlands means those areas that are inundated or 
saturated by surface or ground water at a frequency and duration to 
support, and that under normal circumstances do support, a prevalence of 
vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include swamps, marshes, bogs and similar areas.
    Wetlands or habitat mitigation credit means a unit of wetlands or 
habitat mitigation, defined either by area or a measure of functional 
capacity through application of scientific functional assessment. With 
respect to mitigation banks, this definition means the same as that in 
the Federal Guidance for the Establishment, Use, and Operation of 
Mitigation Banks.