Meeting Notes: FHWA Policy Interpretation

Federal Eligibility for CEQA mitigation

We’ve had a number of inquires recently regarding federal eligibility for CEQA relatedmitigation and permit requirements. On August 5, 2010,CT DLA environmental staff and Legal met with FHWA environmental staff and Legal and we now have a new policy interpretation.

Following is FHWA’s interpretation of their federal eligibility requirements:

  1. While there is no such thing as a “mitigated” CE under CEQA, there may still be permits, agreements, approvals issued by Regulatory agencies. Those compensation measures would be eligible under #2 below.
  2. For those local agencies interested in requesting federal participation for mitigation measures setforth in their CEQA IS/NDs and EIRs that are associated with local agency federal-aid transportation projects ‘off’ the State Highway System, following is FHWA’s policy (per 23 CFR 133)regarding eligibility:
  3. The implementation of mitigation, as setforth in the IS/ND or EIR, and/or a CE with a permit, is eligible for federal reimbursement. That is, the actual work that is done on the ground.“Physically” meeting the parameters of the law.
  4. The preparation of the CEQA document, the application for permits, and any legal actions resulting from same, are not federally eligible.
  5. With respect to implementation of mitigation/compensation, if the costs are itemized, and the fees broken out to specifically show acquisition costs, construction costs and maintenance, the acquisition and construction costs are federally eligible but maintenance costs are not federally eligible.
  6. With respect to plant establishment, costs associated with the first two to three years of plant establishment are federally eligible, but long term maintenance, past plant establishment is not federally eligible.
  7. Curation and maintenance are not federally eligible costs.
  8. Example, Valley Elderberry Longhorn Beetle (VELB), establishment, monitoring and reporting are federally eligible, but not long term maintenance past plant establishment
  9. How we insure that the CEQA mitigation is a reasonable expenditure of public funds is a CT NEPA Assignment policy staff responsibility.

FHWA indicated that they would reimburse:

  • Ratios, however, this will also depend on other factors(i.e., a ratio of 3:1 may be reasonable in some cases, but 1:1 may be reasonable in another), so reliance on a ratio alone may not be enough.
  • When the ECR justification meets CT policy
  • When the ECR justification clearly states that it meets 1601/02 or other permit conditions