23 C.F.R. § 771.107

Definitions

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The definitions contained in 42 U.S.C. 4336e and in titles 23 and 49 of the United States Code are applicable. In addition, the following definitions apply to this part.

Action. A highway, transit, or railroad project proposed for U.S. DOT funding. It also can include activities such as joint and multiple use permits, changes in access control, or rulemakings, which may or may not involve a commitment of Federal funds.

Administration. FHWA, FRA, or FTA, whichever is the designated Federal lead agency for the proposed action. A reference herein to the Administration means FHWA, FRA, or FTA, or a State when the State is functioning as FHWA, FRA, or FTA in carrying out responsibilities delegated or assigned to the State in accordance with 23 U.S.C. 326 or 327, or other applicable law. A reference herein to FHWA, FRA, or FTA means the State when the State is functioning as FHWA, FRA, or FTA respectively in carrying out responsibilities delegated or assigned to the State in accordance with 23 U.S.C. 326 or 327, or other applicable law. Nothing in this definition alters the scope of any delegation or assignment made by FHWA, FRA, or FTA.

Administration action. FHWA, FRA, or FTA approval of the applicant's request for Federal funds for construction. It also can include approval of activities, such as joint and multiple use permits, changes in access control, rulemakings, etc., that may or may not involve a commitment of Federal funds.

Applicant. Any Federal, State, local, or federally recognized Indian Tribal governmental unit that requests funding approval or other action by the Administration and that the Administration works with to conduct environmental studies and prepare environmental review documents. When another Federal agency, or the Administration itself, is implementing the action, then the lead agencies (as defined in this section) may assume the responsibilities of the applicant in this part. If there is no applicant, then the Federal lead agency will assume the responsibilities of the applicant in this part. The applicant may also be the project sponsor.

Cooperating agency. Any Federal, State, Tribal, or local agency that has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal and has been designated as a cooperating agency by the lead agency.

Environmental document. An environmental assessment, finding of no significant impact, notice of intent, environmental impact statement, or record of decision.

Environmental studies. The investigations of potential reasonably foreseeable environmental impacts to determine the environmental process to be followed and to assist in the preparation of the environmental document.

Finding of no significant impact (FONSI). Means a final determination by the Administration that the proposed action does not require the issuance of an environmental impact statement.

Lead agency(ies). The Administration and, if applicable, any other agency designated to serve as a joint lead agency with the Administration under 23 U.S.C. 139(c)(3) or 42 U.S.C. 4336a(1)(B).

Major Federal action. An action that the Administration determines is subject to substantial Federal control and responsibility.

Major project. A project subject to the requirements of 23 U.S.C. 139 that:

(1) Requires multiple (two, or more) authorizations, reviews, or studies under a Federal law other than NEPA;

(2) For which the lead agency has determined an EIS is required (or for which the lead agency has determined an EA is required and where the project sponsor requests that the project be treated as a major project); and

(3) For which the project sponsor has identified the reasonable availability of funds sufficient to complete the project.

Participating agency. A Federal, State, local, or federally recognized Indian Tribal governmental unit with an interest in the proposed project and has accepted an invitation to be a participating agency or, in the case of a Federal agency, has not declined the invitation in accordance with 23 U.S.C. 139(d)(3).

Programmatic approaches. An approach that reduces the need for project-by-project reviews, eliminates repetitive discussion of the same issue, or focuses on the actual issues ripe for analyses at each level of review, consistent with NEPA and other applicable law.

Project sponsor. The Federal, State, local, or federally recognized Indian Tribal governmental unit, or other entity, including any private or public-private entity that seeks Federal funding or an Administration action for a project. Where it is not the applicant, the project sponsor may conduct some of the activities on the applicant's behalf.

Section 4(f). Refers to 49 U.S.C. 303 and 23 U.S.C. 138 (as implemented by 23 CFR part 774).

Special expertise. Statutory responsibility, agency mission, or related program experience.

Notes of Decisions

Cited in 9 cases, 1985–2014 · leading case: Defenders of Wildlife v. North Carolina Dep't of Transp., 762 F.3d 374 (4th Cir. 2014).

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Defenders of Wildlife v. North Carolina Dep't of Transp., 762 F.3d 374 (4th Cir. 2014). “” 23 C.F.R. 771.107(e) n. 2 (2013). 14 . The term "Section 4(f) property” refers to "publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local…”

No East-West High. Comm., Inc. v. John P. Chandler, as New Hampshire High. Comm'r, 767 F.2d 21 (1st Cir. 1985). · cites it 2× “-18, incorporated by 23 C.F.R. 771.107. “Significantly,” in turn, requires considerations of both context and intensity: (a) Context.”

Clairton Sportsmen's Club v. Pennsylvania Tpk. Comm'n, 882 F. Supp. 455 (W.D. Pa. 1995). · cites it 2× “23 , which requires active preparation of a decision by a federal agency, or FHWA’s definition of “action,” 23 C.F.R. §§ 771.107 (b), 771.109(a)(1). We thus find that 40 C.”

Sw. Williamson Cnty. Cmty. Ass'n v. Slater, 243 F.3d 270 (6th Cir. 2001). “” 23 C.F.R. § 771.107 (b). On a plain reading of the regulations, agency review of changes in access control, i.”

Hells Canyon Pres. Council v. Jacoby, 9 F. Supp. 2d 1216 (D. Or. 1998). “23 C.F.R. § 771.107 (b). Section 771.109 provides that: “The provision of this regulation and the CEQ regulation apply to actions where the Administration exercises sufficient control to condition the permit or project approval.”

N. Crawfish Frog v. Fed. High. Admin., 858 F. Supp. 1503 (D. Kan. 1994). “" 23 C.F.R. § 771.107 (e) n. 2. Apparently to avoid confusion, the courts and regulations promulgated by the FHWA continue to refer to this portion of the code as “Section 4(f).”

Highland Vill. Parents Grp. v. United States Fed. High. Admin., 562 F. Supp. 2d 857 (E.D. Tex. 2008). “, 23 C.F.R. § 771.107 (e) (2008). Section 4(f) and the accompanying regulations enumerate United States policy favoring the preservation of “the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.”

Friends of Pioneer Street Bridge Corp. v. Fed. High. Admin., 150 F. Supp. 2d 637 (D. Vt. 2001). “Determinations under this provision are labeled ''4(0” matters after their prior codification number because, according to FHWA regulations, "it would create needless confusion to do otherwise.”

West v. Sec'y of the Dep't of Transp., 206 F.3d 920 (9th Cir. 2000). “§ 111 (a) (“the State will not add any points of access to, or exit from, [the interstate highway system] without the prior approval of the [FHWA]”); see also 23 C.F.R. § 771.107 (defining “action” and “administration action”), and 23 C.”

— 23 C.F.R. § 771.107(e) — 1 case

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