[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR777.9]

[Page 420-421]
 
                           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. 777.9  Mitigation of impacts.

    (a) Actions eligible for Federal funding. There are a number of 
actions that can be taken to minimize the impact of highway projects on 
wetlands or natural habitats. The following actions qualify for Federal-
aid highway funding:
    (1) Avoidance and minimization of impacts to wetlands or natural 
habitats through realignment and special design, construction features, 
or other measures.
    (2) Compensatory mitigation alternatives, either inside or outside 
of the right-of-way. This includes, but is not limited to, such measures 
as on-site

[[Page 421]]

mitigation, when that alternative is determined to be the preferred 
approach by the appropriate regulatory agency; improvement of existing 
degraded or historic wetlands or natural habitats through restoration or 
enhancement on or off site; creation of new wetlands; and under 
exceptional circumstances, preservation of existing wetlands or natural 
habitats on or off site. Restoration of wetlands is generally preferable 
to enhancement or creation of new wetlands.
    (3) Improvements to existing wetlands or natural habitats. Such 
activities may include, but are not limited to, construction or 
modification of water level control structures or ditches, establishment 
of natural vegetation, re-contouring of a site, installation or removal 
of irrigation, drainage, or other water distribution systems, integrated 
pest management, installation of fencing, monitoring, and other measures 
to protect, enhance, or restore the wetland or natural habitat character 
of a site.
    (4) Mitigation banks. In accordance with all applicable Federal law 
(including regulations), with respect to participation in compensatory 
mitigation related to a project funded under title 23, U.S. Code, that 
has an impact on wetlands or natural habitat occurring within the 
service area of a mitigation bank, preference shall be given, to the 
maximum extent practicable, to the use of the mitigation bank, if the 
bank contains sufficient available credits to offset the impact and the 
bank is approved in accordance with the Federal Guidance for the 
Establishment, Use, and Operation of Mitigation Banks, or other 
agreement between appropriate agencies.
    (b) Mitigation banking alternatives eligible for participation with 
Federal-aid funds including such measures as the following:
    (1) Mitigation banks in which mitigation credits are purchased by 
State DOTs to mitigate impacts to wetlands or natural habitats due to 
projects funded under title 23, U.S. Code, including privately owned 
banks or those established with private funds to mitigate wetland or 
natural habitat losses.
    (2) Single purpose banks established by and for the use of a State 
DOT with Federal-aid participation; or multipurpose publicly owned 
banks, established with public, non-title 23 Federal highway funds, in 
which credits may be purchased by highway agencies using title 23 
highway funds on a per-credit basis.
    (c) Contributions to statewide and regional efforts to conserve, 
restore, enhance and create wetlands or natural habitats. Federal-aid 
funds may participate in the development of statewide and regional 
wetlands conservation plans, including any efforts and plans authorized 
pursuant to the Water Resources Development Act of 1990 (Pub. L. 101-
640, 104 Stat. 4604). Contributions to these efforts may occur in 
advance of project construction only if such efforts are consistent with 
all applicable requirements of Federal law and regulations and State 
transportation planning processes.
    (d) Mitigation or restoration of historic impacts to wetlands and 
natural habitats caused by past highway projects funded pursuant to 
title 23, U.S. Code, even if there is no current federally funded 
highway project in the immediate vicinity. These impacts must be related 
to transportation projects funded under the authority of title 23, U.S. 
Code.