[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR771.109]

[Page 402-403]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 771_ENVIRONMENTAL IMPACT AND RELATED PROCEDURES--Table of Contents
 
Sec.  771.109  Applicability and responsibilities.

    (a)(1) The provisions of this regulation and the CEQ regulation 
apply to actions where the Administration exercises sufficient control 
to condition the permit or project approval. Actions taken by the 
applicant which do not require Federal approvals, such as preparation of 
a regional transportation plan are not subject to this regulation.
    (2) This regulation does not apply to, or alter approvals by the 
Administration made prior to the effective date of this regulation.
    (3) Environmental documents accepted or prepared by the 
Administration after the effective date of this regulation shall be 
developed in accordance with this regulation.
    (b) It shall be the responsibility of the applicant, in cooperation 
with the Administration to implement those mitigation measures stated as 
commitments in the environmental documents prepared pursuant to this 
regulation. The FHWA will assure that this is accomplished as a part of 
its program management responsibilities that include reviews of designs, 
plans, specifications, and estimates (PS&E), and construction 
inspections. The FTA will assure implementation of committed mitigation 
measures through incorporation by reference in the grant agreement, 
followed by reviews of designs and contruction inspections.
    (c) The Administration, in cooperation with the applicant, has the 
responsibility to manage the preparation of the appropriate 
environmental document. The role of the applicant will be determined by 
the Administration accordance with the CEQ regulation:
    (1) Statewide agency. If the applicant is a public agency that has 
statewide jurisdiction (for example, a State highway agency or a State 
department of transportation) or is a local unit of government acting 
through a statewide agency, and meets the requirements of section 
102(2)(D) of NEPA, the applicant may prepare the environmental impact 
statement (EIS) and other environmental documents with the 
Administration furnishing guidance, participating in the preparation, 
and independently evaluating the document. All FHWA applicants qualify 
under this paragraph.
    (2) Joint lead agency. If the applicant is a public agency and is 
subject to State or local requirements comparable to NEPA, then the 
Administration and the applicant may prepare the EIS and other 
environmental documents as joint lead agencies. The applicant shall 
initially develop substantive portions of the environmental document, 
although the Administration will be responsible for its scope and 
content.
    (3) Cooperating agency. Local public agenices with special expertise 
in the proposed action may be cooperating agencies in the preparation of 
an environmental document. An applicant for capital assistance under the 
Federal transit laws (49 U.S.C. Chapter 53) is presumed to be a 
cooperating agency if the conditions in paragraph (c) (1) or (2) of this 
section do not apply. During

[[Page 403]]

the environmental process, the Administration will determine the scope 
and content of the environmental document and will direct the applicant, 
acting as a cooperating agency, to develop information and prepare those 
portions of the document concerning which it has special expertise.
    (4) Other. In all other cases, the role of the applicant is limited 
to providing environmental studies and commenting on environmental 
documents. All private institutions or firms are limited to this role.
    (d) When entering into Federal-aid project agreements pursuant to 23 
U.S.C. 110, it shall be the responsibility of the State highway agency 
to ensure that the project is constructed in accordance with and 
incorporates all committed environmental impact mitigation measures 
listed in approved environmental documents unless the State requests and 
receives written Federal Highway Administration approval to modify or 
delete such mitigation features.

[52 FR 32660, Aug. 28, 1987; 53 FR 11065, Apr. 5, 1988, as amended at 62 
FR 6873, Feb. 14, 1997; 70 FR 24469, May 9, 2005]