Eco-Logical: An Ecosystem Approach to
Developing Infrastructure Projects

Appendix D - Federal Laws and Requirements

Anadromous Fish Conservation Act (16 USC 757a-757g; 79 Stat. 1125)
This Act authorizes the Secretaries of the Interior and Commerce to enter into cooperative agreements with the States and other non-Federal interests for conservation, development, and enhancement of anadromous fish, including those in the Great Lakes, and to contribute up to 50 percent as the Federal share of the cost of carrying out such agreements.

Bald Eagle Protection Act of 1940 (16 USC 668-668d, 54 Stat. 250)
This law provides for the protection of the bald eagle and the golden eagle by prohibiting, except under certain specified conditions, the taking, possession and commerce of such birds. The 1978 amendment authorizes the Secretary of the Interior to permit the taking of golden eagle nests that interfere with resource development or recovery operations.

Clean Air Act (CAA) of 1972 (42 USC s/s 7401 et seq.)
President Lyndon B. Johnson signed the CAA into law in 1963. It was amended in 1970, 1975, 1977, and 1990. Health-based Federal air quality standards that set the maximum acceptable levels of pollution for outdoor air were the strategic basis of the CAA. The standards were to me bet through the application of control technology that would reduce pollutants continuously and result in improved air quality, as measured by air quality monitoring stations.

The CAA requires that State governments develop State Implementation Plans (SIPs), which set out measures to achieve acceptable air quality. Under section 176(c) of the 1990 Amendments to the CAA, Federal agencies may not take actions that do not conform to the SIP for the attainment and maintenance of Federal air quality standards in areas not meeting those standards or that are in maintenance periods for those standards.

Clean Water Act (CWA), Section 401 (33 USC ss/1251 et seq)
Section 401 of the CWA, the State Water Quality Certification program, requires that states certify compliance of Federal permits or licenses with state water quality requirements and other applicable state laws. Under Section 401, states have authority to review any Federal permit of license that may result in a discharge to wetlands and other waters under state jurisdiction, to ensure that the actions would be consistent with the state's water quality requirements.

CWA, Section 402 (33 USC ss/1251 et seq)
The National Pollutant Discharge Elimination System (NPDES) program - required by Section 402 of the CWA - regulates discharges from point sources to waters of the United States. Point source is defined by the CWA as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or floating craft, from which pollutants are or may be discharged."

CWA, Section 404 (33 USC ss/1251 et seq)
The Federal Water Pollution Control Act, known as the Clean Water Act, is a comprehensive statute aimed at restoring and maintaining the chemical, physical and biological integrity of the nation's waters. The purpose of the Act is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Primary authority for the implementation and enforcement of the Clean Water Act now rests with EPA and USACE for wetlands.

Important for wildlife protection purposes are the provisions requiring permits to dispose of dredged and fill materials into navigable waters. Permits are issued by USACE under guidelines developed by EPA. Potential Impacts on Biological Characteristics of the Aquatic Ecosystem are defined at Sec. 404 Subpart D, and for threatened and endangered species in particular at Sec. 404 230.30.

Coastal Barrier Resources Act (COBRA) (96 Stat. 1653; 16 USC 3501 et seq.)
This legislation intends to minimize the loss of human life, wasteful expenditures of Federal revenues, and the damage to fish, wildlife, and other natural resources by designating a coastal barrier resources system of units needing protection. Agencies consult maps that depict the boundaries of each coastal barrier unit and conduct required coordination with the USFWS regional director if the project crosses or is in close proximity to a unit.

Coastal Zone Management Act (CZMA) of 1972 (16 USC 1456)
The Coastal Zone Management Improvement Act of 1980 (P.L. 96-464) established a new system of Resource Management Improvement Grants related to preservation of certain coastal areas, redevelopment of urban waterfronts, and public access to beaches. The Act declares "the national policy to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations." The NOAA provides the requisite Federal approvals for CZM Plans and oversees subsequent implementation of the programs.

Congestion Mitigation and Air Quality (CMAQ) Improvement Program
The program was designed to assist nonattainment and maintenance areas in the reduction of transportation-related emissions. The provisions apply to transportation programs or projects that are likely to contribute to the attainment or maintenance of the national air quality standards in nonattainment areas and areas redesignated to maintenance. The project sponsor (transit operator, municipal office, etc.) develops a formal proposal to improve air quality. This is submitted to the MPO(s) and the state for evaluation and approval. The project is then included in the Transportation Improvement Plan (TIP) and approved as eligible by the Federal Transit Administration (FTA) and FHWA in consultation with the EPA.

Emergency Wetlands Resources Act of 1986 (16 USC 3901-3932)
The purpose of the Act (16 U.S.C. 3921 to 3931) is to promote wetlands conservation for the public benefit and to help fulfill international obligations in various migratory bird treaties and conventions.

Endangered Species Act (ESA) (USC 136; 16 USC 460 et seq.)
The ESA provides broad protection for species of fish, wildlife and plants that are listed as threatened or endangered in the U.S. or elsewhere. Provisions are made for listing species, as well as for recovery plans and the designation of critical habitat for listed species. The Act outlines procedures for Federal agencies to follow when taking actions that may jeopardize listed species, and contains exceptions and exemptions. The ESA prohibits the "taking" of listed animals and, under certain circumstances, regulates destruction of habitat needed for feeding, reproduction, and shelter.

Section 7(a)(1) of the ESA of 1973 (USC 136; 16 USC 460 et seq.)
The goal of the ESA is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," thereby conserving the associated species of fish, wildlife, and plants threatened with extinction. The act requires consultation on Federal actions with the secretary of the interior or commerce, as appropriate. Responsible agencies include the USFWS and the NOAA Fisheries Service.

Executive Order 11990: Protection of Wetlands DOT Order 5660.1A
This EO requires the avoidance of direct or indirect support of new construction in wetlands wherever there is a practicable alternative. The executive order requires evaluation and mitigation of impacts on wetlands.

Executive Order 11988: Floodplain Management
The intent of the EO is to avoid the long- and short-term adverse impacts associated with the occupancy and modification of floodplains, and to restore and preserve the natural and beneficial values served by floodplains. All construction of Federal or Federally aided buildings, structures, roads, or facilities, which encroach upon or affect the base floodplain, requires the following: (1) assessment of floodplain hazards and (2) specific finding required in final environmental document for significant encroachments.

Federal Land Policy and Management Act of 1976 (FLPMA) (43 USC Sec. 1701)
Under Section 102 of FLPMA, the BLM will manage public lands "in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resources, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use." Under FLPMA, the BLM strives to achieve its mission, "To sustain the health, diversity, and productivity of the public lands for the use and enjoyment of present and future generations."

Federal-Aid Highway Act-Economic, social, and environmental effects (23 U.S.C. 109(h), (P.L. 89-574, §§ 5(a), 14, 80 Stat. 767, 771; Dec. 31, 1970)
This statute was passed to ensure 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. It is applicable to the planning and development of proposed projects on any Federal-aid highway system for which the FHWA approves the plans, specifications, and cost estimates or has the responsibility for approving a program. Identification of economic, social, and environmental effects; consideration of alternative courses of action; involvement of other agencies and the public; and a systematic interdisciplinary approach are required.

Fish and Wildlife Coordination Act (16 USC 661-667e; the Act of March 10, 1934; Ch.55; 48 Stat. 401)
The Act authorizes the Secretary of the Interior to provide assistance to and cooperate with Federal, State, and public or private agencies and organizations in the development and protection of wildlife resources and habitat; make surveys and investigations of the wildlife in the public domain; and accept donations of land and funds that will further the purposes of the Act.

Land and Water Conservation Fund Act of 1965 (16 USC 460l-4-460l-11)
This Act (16 U.S.C. 460) regulates admission and special recreation user fees at certain recreational areas and establishes a fund to subsidize state and Federal acquisition of lands and waters for recreational and conservation purposes. "The purposes of the Act are to assist in preserving, developing and assuring accessibility to outdoor recreation resources and to strengthen the health and vitality of U.S. citizens by providing funds and authorizing Federal assistance to states in planning, acquiring and developing land and water areas and facilities, and by providing funds for Federal acquisition and development of lands and other areas."

Marine Protection Research and Sanctuaries Act of 1972 (Public Law 92-532; October 23, 1972; 86 Stat. 1052 and 1061)
This act regulates dumping of material into U.S. ocean waters. Any transportation of materials and dumping into the open sea is covered under this act. The act requires application for a permit in accordance with procedures. The responsible agencies are the EPA and the USACE if there are dredge materials. In this instance, the relationship to wildlife comes when demolition materials are disposed of in marine waters or used as artificial reefs.

Magnuson-Stevens Fishery Conservation and Management Act (16 USC 1801 et seq.)
The Magnuson Stevens Fishery Conservation Management Act of 1975 governs how much of the nation's fish can be harvested. In 1996, an amendment to the act strengthened the link between habitat rebuilding and fisheries sustainability. Until the Magnuson-Stevens Act, no regulations existed that required other agencies to consider adverse effects on Essential Fish Habitat (EFH), to identify EFH for managed species, or measure the effectiveness of conservation efforts to enhance the habitat fish species need.

Section 305(b)(2) of the Act requires all Federal agencies to consult with NOAA Fisheries Service regarding any of their actions authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken that may adversely affect EFH, regardless of whether the action is land-based or directly within waters designated as EFH.

Migratory Bird Conservation Act of 1929 (16 USC 715-715r)
This Act established a Migratory Bird Conservation Commission to approve areas recommended by the Secretary of the Interior for acquisition with Migratory Bird Conservation Funds. The Secretary of the Interior is authorized to cooperate with local authorities in wildlife conservation and to conduct investigations, to publish documents related to North American birds, and to maintain and develop refuges. Specific provisions in the statute include establishment of a Federal prohibition, unless permitted by regulations, to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported, carry, or cause to be carried by any means whatever, receive for shipment, transportation or carriage, or export, at any time, or in any manner, any migratory bird, included in the terms of this Convention…for the protection of migratory birds…or any part, nest, or egg of any such bird."

National Trails System Act (16 USC 1241-1249)
This act provides for outdoor recreation needs and encourages outdoor recreation. Projects affecting national scenic or historic trails designated by Congress, and the lands through which such trails pass, require coordination. National recreation trails and side or connecting trails are proposed by local sponsors and approved by the DOI and DOA. DOI (NPS) and Agriculture (USFS) administer the trail system, but other Federal land management agencies may apply for designation.

National Environmental Policy Act of 1969 (42 USC 4321-4347)
The purpose of this Act is to declare a national policy that encourages productive and enjoyable harmony between humans and their environment and to promote efforts to prevent damage to the environment. The Act requires Federal agencies to include a detailed statement of the environmental impact in every recommendation or report on proposals for major Federal action significantly affecting the quality of the human environment; requires Federal agencies to study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources; and requires Federal agencies to initiate and utilize ecological information in the planning and development of resource-oriented projects.

The National Park Service Organic Act of 1916 (16 USC l 2 3, and 4)
This Act established the National Park Service to promote and regulate national parks and other NPS-designated Federal areas, whose purpose is to "conserve the scenery and the natural and historic objects and the wild life therein" and to provide for the enjoyment of those resources in such a manner as will leave them unimpaired for the enjoyment of future generations.

Noise Standards (23 USC 109(i), (P.L. 91-605), (P.L. 93- 87). 23 CFR 772)
This law promulgates noise standards for highway traffic. All Federally funded projects for the construction of a highway on a 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 require the following: (1) noise impact analysis, (2) analysis of mitigation measures, and (3) the incorporation of reasonable and feasible noise abatement measures to reduce or eliminate noise impact. Noise standards are generally aimed at human receptors. The FHWA administers this law.

Partnerships for Wildlife Act (16 USC 3741-3744)
This Act establishes a Wildlife Conservation and Appreciation Fund to receive appropriated funds and donations from the National Fish and Wildlife Foundation and other private sources to assist the State fish and game agencies in carrying out their responsibilities for conservation of nongame species and authorizes grants to the States for programs and projects to conserve nongame species, with administrative requirements very similar to those contained in the Federal Aid Wildlife (Pittman-Robertson) and Sport Fish (Wallop-Breaux) Restoration programs.

Rivers and Harbors Act of 1899 (33 USC 403)
The Act is designed to protect navigable waters in the United States. Any construction affecting navigable waters (over, under, or in) and any obstruction, excavation, or filling is covered. Applicant must obtain approval of plans for construction, dumping, and dredging permits (Sec. 10), as well as bridge permits (Sec. 9). The act also protects important estuarine and marine habitats. USACE, U.S. Coast Guard, EPA, and state agencies each have responsibilities to administer.

Section 4(f) of the Department of Transportation Act (49 USC 1563(f)) - 23 CFR 771.135)
This section of the Act requires the preservation of publicly owned parklands, waterfowl and wildlife refuges, and significant historic sites. There is a specific finding required for significant publicly owned parklands, recreation areas, wildlife and waterfowl refuges, and all significant historic sites "used" for a highway project. This specific finding requires that 1) the selected alternatives must avoid protected areas, unless not feasible or prudent, and 2) the project includes all possible planning to minimize harm. Coordination with the DOI, Department of Agriculture (DOA), Housing and Urban Development, State or local agencies having jurisdiction, and the State historic preservation officer (for historic sites) is required.

Solid Waste Disposal Act (42 USC 82)
This Act provides for the recovery, recycling, and environmentally safe disposal of solid wastes. It applies to all projects that involve the recycling or disposal of solid wastes. Proper disposal of solid wastes is important to terrestrial and aquatic habitats and their associated wildlife. Additionally, recycling prevents further resource extraction in wildlife habitat. The EPA administers the provisions of this act.

The Wild And Scenic Rivers Act (16 USC 1271-1287)
The Act establishes a National Wild and Scenic Rivers System for the protection of rivers with important scenic, recreational, fish and wildlife, and other values. The Act contains procedures and limitations for control of lands in Federally administered components of the System and for disposition of lands and minerals under Federal ownership.

The Wilderness Act of 1964 (16 USC 1131-1136)
This Act established the National Wilderness Preservation System "[i]n order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness."

Wildflowers (23 USC 319(B), (P.L. 100-17). 23 CFR 752)
This statute is meant to encourage the use of native wildflowers in highway landscaping. Native wildflowers are to be planted on any landscaping project undertaken on the Federal-aid highway system. At least one-quarter of 1% of funds expended on a landscaping project must be used to plant native wildflowers on that project. The FHWA state, division, and regional contacts work with state transportation agencies on these programs.

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