C.F.R. » Title 23 » CHAPTER I—FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION › SUBCHAPTER H—RIGHT-OF-WAY AND ENVIRONMENT › PART 771—ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

23 C.F.R. § 771.109

Applicability and responsibilities

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(a)(1) The provisions of this part only apply to major Federal actions. Steps taken by the applicant that do not require Federal approvals, such as preparation of a regional transportation plan, are not subject to this part.

(2) The Administration has determined the following additional actions are not major Federal actions subject to NEPA:

(i) Extraterritorial activities or decisions, which means agency activities or decisions with effects located entirely outside the jurisdiction of the United States.

(ii) [Reserved]

(3) This part does not apply to or alter final agency action the Administration made prior to July 3, 2025.

(4) Environmental documents accepted or prepared after July 3, 2025 must be developed in accordance with this part.

(b)(1) The project sponsor, in cooperation with the Administration, is responsible for implementing those mitigation measures stated as commitments in the environmental documents prepared pursuant to this part unless the Administration approves of their deletion or modification in writing. FHWA will ensure that this is accomplished as a part of its stewardship and oversight responsibilities. FRA and FTA will ensure implementation of committed mitigation measures through incorporation by reference in the grant agreement, followed by reviews of designs and construction inspections.

(2) When entering into Federal-aid project agreements pursuant to 23 U.S.C. 106, FHWA must ensure the State highway agency constructs the project in accordance with and incorporates all committed environmental impact mitigation measures listed in approved environmental review documents.

(c) The following roles and responsibilities apply during the environmental review process:

(1) The Federal lead agencies are responsible for managing the environmental review process and the contents of the appropriate environmental documents.

(2) Any State or local governmental entity applicant that is or is expected to be a direct recipient of funds under title 23, U.S. Code or chapter 53 of title 49, U.S. Code for the action, or is or is expected to be a direct recipient of financial assistance for which FRA is responsible (e.g., Subtitle V of Title 49, U.S. Code) must serve as a joint lead agency with the Administration in accordance with 23 U.S.C. 139, and may prepare environmental review documents if the Administration furnishes guidance, and independently evaluates the environmental documents.

(3) The Administration may invite other Federal, State, local, or federally recognized Indian Tribal governmental units to serve as joint lead agencies in accordance with 42 U.S.C. 4336(a)(1)(B). If the applicant is serving as a joint lead agency under 23 U.S.C. 139(c)(3), then the Administration and the applicant will decide jointly which other agencies to invite to serve as joint lead agencies.

(4) When the applicant seeks an Administration action other than the approval of funds, the Administration will determine the role of the applicant in accordance with this part and 23 U.S.C. 139.

(5) Regardless of its role under paragraphs (c)(2) through (c)(4) of this section, a public agency that has statewide jurisdiction (for example, a State highway agency or a State department of transportation) or a local unit of government acting through a statewide agency, that meets the requirements of 42 U.S.C. 4332(G), may prepare the environmental documents with the Administration furnishing guidance, participating in the preparation, and independently evaluating the document. All FHWA applicants qualify under this paragraph.

(6) A participating agency must provide input during the times specified in the coordination plan under 23 U.S.C. 139(g) and within the agency's special expertise or jurisdiction. Participating agencies provide comments and concurrence on the schedule within the coordination plan. For projects not subject to 23 U.S.C. 139, participating agencies will participate in the environmental review process consistent with 42 U.S.C. 4336a, as appropriate.

(d) When entering into Federal-aid project agreements pursuant to 23 U.S.C. 106, the State highway agency must ensure the project is constructed in accordance with and incorporates all committed environmental impact mitigation measures listed in approved environmental documents unless the State requests and receives written FHWA approval to modify or delete such mitigation features.

(e) When FRA is the lead agency, the project sponsor is a private entity, and there is no applicant acting as a joint-lead agency, FRA may provide written authorization to the project sponsor to prepare the environmental document under FRA supervision. FRA's written authorization will establish the project sponsor's and FRA's respective responsibilities in preparing the environmental document.

Notes of Decisions
Cited in 24 cases, 1982–2020 · leading case: 1000 Friends of Wisconsin Inc. v. United States Dep't of Transp., 860 F.3d 480 (7th Cir. 2017).
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1000 Friends of Wisconsin Inc. v. United States Dep't of Transp., 860 F.3d 480 (7th Cir. 2017). · cites it 4× “§139 ; 23 C.F.R. §771.109 (c)(1). But the question is not whether the state suffers insult from the district court’s evaluation of its handiwork or injury from the judgment—it does, because the district court’s judgment costs it a lot of money (unless USDOT comes up with a new…”
Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152 (10th Cir. 2002). “5 (a); 23 C.F.R. 771.109(c)(1). They rely upon the lack of any independent evaluation of project costs submitted by UDOT.”
Stop H-3 Ass'n v. Lewis, 538 F. Supp. 149 (D. Haw. 1982). · cites it 3× “23 C.F.R. § 771.109 (a)(4) (1981). Since the original draft EIS (Moanalua) was filed with the EPA in 1972, and the Draft NHV-SEIS was filed in 1977, defendants properly applied the older regulations in preparing the NHV-SEIS and Ho’omaluhia Park 4(f) Statement.”
Friends of the Capital Crescent Trail v. Fed. Transit Admin., 877 F.3d 1051 (D.C. Cir. 2017). “§ 5309(d)(1); 23 C.F.R. § 771.109 (c)(2). This review culminates in a Record of Decision (“ROD”) in which FTA identifies the alternative chosen and demonstrates the project’s compliance with NEPA.”
Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. United States Dep't of Transp., 524 F. Supp. 2d 642 (D. Maryland 2007). “3 ) and as stipulated in regulations by the FHWA ( 23 C.F.R. § 771.109 (b)). ROD at 1,17-20.”
City of South Pasadena v. Slater, 56 F. Supp. 2d 1106 (C.D. Cal. 1999). · cites it 2× “” 23 C.F.R. § 771.109 (a)(1), (b). In interpreting similar regulations under the National Environmental Protection Act (“NEPA”), the Ninth Circuit has held that once an agency makes a commitment to certain mitigation measures, those mitigation measures must be implemented.”
Citizens for Smart Growth v. Sec'y of the Dep't of Transp., 669 F.3d 1203 (11th Cir. 2012). “In support of its position, Citizens points to 23 C.F.R. § 771.109 (c)(5), which states that a local agency “may prepare the EIS and other environmental review documents with the Administration furnishing guidance, participating in the preparation, and independently evaluating…”
Sw. Williamson Cnty. Cmty. Ass'n v. Slater, 243 F.3d 270 (6th Cir. 2001). “” 23 C.F.R. § 771.109 (a)(1). An “action” in turn is defined as an activity such as “changes in access control .”
Sierra Club v. Marsh, 714 F. Supp. 539 (D. Me. 1989). · cites it 2× “5 (c); see 23 C.F.R. § 771.109 (c)(1). In its supplemental memorandum denying plaintiffs’ motion for a preliminary injunction, this court found that FHwA personnel did participate in the preparation of the EIS.”
Robert MacHt v. Samuel K. Skinner, Sec'y, Dep't of Transp., 916 F.2d 13 (D.C. Cir. 1990). “§ 4332 (2)(D); see also 23 C.F.R. § 771.109 (c) (UMTA regulations).”
Clairton Sportsmen's Club v. Pennsylvania Tpk. Comm'n, 882 F. Supp. 455 (W.D. Pa. 1995). “” 23 C.F.R. § 771.109 (a)(1) (1993). 10 . The Court went even further in Kleppe .”
Senville v. Peters, 327 F. Supp. 2d 335 (D. Vt. 2004). “§ 4332 (2)(D); see also 23 C.F.R. § 771.109 (e)(1) (if applicant meets requirements of § 4332(2)(D), it may prepare EIS with FHWA furnishing guidance, participating in preparation and independently evaluating document).”
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— 23 C.F.R. § 771.109(c)(1) — 1 case
Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152 (10th Cir. 2002). “5 (a); 23 C.F.R. 771.109(c)(1). They rely upon the lack of any independent evaluation of project costs submitted by UDOT.”
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