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Environmental Mitigation under NHPP and STP Questions & Answers

Posted 9/25/2012

Sections 1106(a) and 1108(a)(8) - Environmental Mitigation under the National Highway Performance Program and Surface Transportation Program (codified as 23 U.S.C. §§ 119(g) and 23 U.S.C. §§ 133(b)(14), respectively)

Question EM-1: What types of environmental mitigation are covered in MAP-21 Sections 1106(a) (National Highway Performance Program (NHPP)) and 1108(a)(8) (Surface Transportation Program (STP))?

Answer EM-1: Environmental mitigation efforts in MAP-21 Section 1106 (a) (NHPP) and 1108(a)(8) (STP) include, but are not limited to:

Question EM-2: Are payments made to mitigation efforts in advance of the commitment of Federal funding permissible under the statute?

Answer EM-2: Contributions are allowed concurrently with, or in advance of, commitment of Federal-aid funding under this title to a project or projects. Mitigation efforts that occur in advance of project construction are permitted only if the efforts are consistent with all applicable requirements of Federal law (including regulations), and State transportation planning processes. For projects with FTA funds, contributions made in advance of grant award would either need to qualify for pre-award authority or a letter of no prejudice, if such contributions are to remain eligible for potential reimbursement with Federal transit funding.

Question EM-3: What is a meant by "other third-party mitigation arrangement?"

Answer EM-3: This term includes the purchase of credits from commercial mitigation banks and in-lieu fee programs, involving an entity other than the project sponsor, where the project sponsor is transferring the long-term management and maintenance of the mitigation requirements. The statute requires such arrangements be in accordance with all applicable Federal laws.

Question EM-4: What is the statutory preference for mitigation efforts?

Answer EM-4: 23 USC 119(g)(4) states that "At the discretion of the project sponsor, preference shall be given, to the maximum extent practicable, to mitigating an environmental impact through the use of a mitigation bank, in-lieu-fee, or other third party mitigation arrangement, if the use of credits from the mitigation bank or lieu-fee, or the other third-party mitigation arrangement for the project, is approved by the applicable Federal agency." This means that, if the statutory prerequisites are met, these options would be used instead of other mitigation approaches such as the creation of natural habitat/wetlands as mitigation for project impacts.

Question EM-5: Are there any caveats to using credits from an agency-sponsored mitigation bank attributed to funding under MAP-21 Sections 1106(a) and 1108(a)(8)?

Answer EM-5: Yes. Credits from any agency-sponsored mitigation bank that are attributable to funding under this section may be used only for projects funded under Title 23, or for eligible projects funded under Chapter 53 of Title 49, unless the agency pays the Secretary an amount equal to the Federal funds attributable to the mitigation bank credits that the agency uses for purposes other than mitigation of the FHWA or FTA assisted project.

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