FHWA Policy Memorandums - Office of Environment and Planning

INFORMATION: Eligibility of ISTEA Funds to Mitigate Historic Impacts to Wetlands

Executive Director HEP-40
Regional Administrators
Federal Lands Highway Program Administrator

During recent coordination concerning the reauthorization of the ISTEA, the EPA urged us to include provisions in the new legislation for the mitigation of wetland resources historically impacted by Federal-aid highway projects. The EPA recommended that the project eligibility provisions for both the National Highway System and the Surface Transportation Program provide for the restoration of wetland resources impacted in the past, but never mitigated. The FHWA responded with the position that the current wetland mitigation provisions in the ISTEA provide ample flexibility for the States to develop mitigation projects for historic impacts to wetlands if they choose to do so. Therefore, there is no need for additional statutory authority.

As support for this position, we cited some examples where ISTEA funds were used to mitigate past impacts. These examples included individual efforts, such as those conducted under the Coastal America Program for reclaiming and restoring previously impacted wetlands. We are confident also that there are other, less prominent restoration efforts occurring as elements of larger mitigation plans negotiated for new highway projects. We concluded that these examples indicate the States recognize and use the flexibility in the ISTEA wetland mitigation provisions by having initiated restoration efforts that addressed historic impacts.

In addition, the FHWA Office of the Chief Counsel was requested to provide a legal opinion regarding the use of ISTEA funds to restore previously impacted wetlands. Attached for your information and use is this opinion issued on February 18. The Chief Counsel concluded that such activities are permissible under current law and, therefore, no changes in the law are necessary.

We believe the restoration of wetlands impacted by past highway projects can be an effective means of mitigation which has support from the resource agencies and serves to protect and enhance wetland resources. We encourage the States to consider restoration of historically impacted wetlands when developing mitigation proposals.

Please contact Mr. Paul Garrett at (202) 366-2067, FHWA e-mail: PGARRETT, or Internet e-mail: paul.garrett@fhwa.dot.gov with any questions or comments you may have.

Original signed by:
Anthony R. Kane


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