Environmental Assessment
US 59: SH 71 to Business 59 north of El Campo
Appendix B
Legislative Overview
This section provides an overview of current legislation, statutes, and related guidance that are applicable to this
environmental assessment’s preparation, including but not limited to the following:
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Federal and state environmental laws and regulations;
Executive Orders;
USDOT Orders;
programmatic agreements, memoranda of understanding, and memoranda of agreement; and
policies, Best Management Practices (BMPs), and guidelines.
General Environmental Planning and Compliance
Federal Laws and Regulations
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National Environmental Policy Act of 1969 (42 USC §§4321-4347, as amended)
Environmental Quality Improvement Act of 1970 (42 USC §4371et seq., PL 91-224, as amended)
Safe, Accountable, Flexible, Efficient Transportation Equity Act – a Legacy for Users (SAFETEA-LU) Act of 2005 (PL
109-59 §§6002, 6003, 6004, 6007, 6009, 6010, and 1119) of 2005 environmental provisions
Environmental regulations of the USDOT, FHWA, and Federal Transit Administration, in accordance with the Council on
Environmental Quality requirements and surface transportation project NEPA requirements (23 CFR Part 771)
“Council on Environmental Quality (CEQ) Regulations for Implementing the National Environmental Policy Act” (40 CFR
Parts 1500 – 1508)
Economic, Social and Environmental Effects of Highways (23 USC 109h) and Economic, Social and Environmental
Effects of Transit (49 USC 5324)
Executive Orders
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EO 11514 “Protection and Enhancement of Environmental Quality” (1970, as amended by EO 11991, 1977)
EO 12088 “Compliance with Pollution Control Standards” (1978)
EO 12915 “Federal Implementation of the North American Agreement on Environmental Cooperation” (59 FR 95 1994,
Section 2(2)) regarding trans-boundary and border environmental issues (i.e. coordination with Mexico)
EO 13148 “Greening the Government Through Leadership in Environmental Management” (65 FR 24595 2000)
EO 13274 “Environmental Stewardship and Transportation Infrastructure Project Reviews” (67 FR 59449 2002)
Texas Administrative Code and Statutes
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43 Texas Administrative Code Chapter 2, Subchapter C: mirrors USDOT regulations in 23 CFR Part 771
Transportation Code Title 6 Trans Texas Corridor §227.027 “Environmental Review”
Transportation Code Title 43 Transportation Part 1 Subchapter 2 Part B “MOUs with state natural resource agencies”
(includes cultural resource agencies also; specifically, Texas Parks and Wildlife Department (TPWD), Texas Historical
Commission (THC), and Texas Commission on Environmental Quality (TCEQ)
USDOT Guidance, Policies, and Agreements
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“Memorandum of Understanding to Foster an Ecosystem Approach” (1995)
DOT Order 5610.1C “Procedures for Considering Environmental Impacts”
FHWA Technical Advisory T-6640.8A (1987): guidance relative to NEPA analyses and document preparation in
accordance with 23 CFR Part 771
“NEPA Requirements for Transportation Enhancement Activities” (1995)
“Interim Guidance for Implementing Key SAFETEA-LU Provisions on Planning, Environment, and Air Quality for Joint
FHWA/FTA Authorities, §6009” (2005)
“Cooperative Agreement between The Nature Conservancy and FHWA regarding Research on Biodiversity
Conservation and Transportation Planning” (1997)
“Vital Few Goal (VFG) Environmental Stewardship and Streamlining: Exemplary Ecosystems Initiative” (2003)
TxDOT Guidance, Policies, and Agreements
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“Environmental Toolkits,” which covers natural resources, cultural resources, public land (Section 4(f)/p(f)), social and
economic, air, noise, hazardous materials assessments, guidelines, and policies (2014)
Environmental Management System(s) supporting project development, construction operations, and facility operations,
including a comprehensive Environmental Tracking System and the Environmental Processes Checklist
Terrestrial and Aquatic Communities, including Threatened, Endangered, and Candidate Species
Federal Laws and Regulations
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Endangered Species Act of 1973 (16 USC §§1531-1543, PL 93-205, as amended)
Bald (and Golden) Eagle Protection Act (16 USC §§668-669d, as amended)
Migratory Bird Treaty Act (16 USC §§703-712, as amended)
Fish and Wildlife Coordination Act (16 USC §§661-666c, PL 85-624, as amended)
Fish and Wildlife Conservation Act of 1980 (16 USC 2901 et seq., PL 96-366, as amended)
50 CFR Part 402 Interagency Cooperation – Endangered Species Act of 1973
Magnuson-Stevens Fishery Conservation and Management Act (16 USC 1801-1882, as amended)
Federal Noxious Weeds Act (7 USC §§ 2801-2814, as amended)
Nonindigenous Aquatic Nuisance Prevention and Control Act (16 USC 4701-4751, 33 CFR Part 151)
Surface Transportation and Uniform Relocation Assistance Act of 1987 Section 130 [23 USC §319(b)] (native
wildflowers)
Executive Orders
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EO 13112 “Invasive Species”
EO 13186 “Responsibility of Federal Agencies to Protect Migratory Birds”
EO 12962 “Recreational Fisheries”
Executive Memorandum
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“Environmentally and Economically Beneficial Practices on Federal Landscaped Ground” (April 26, 1994)
Texas Administrative Code and Statutes
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Texas Parks and Wildlife Code Title 5 (Wildlife and Plant Conservation): Chapter 63 “Game and Nongame Animals,”
Chapter 64 “Birds,” Chapter 65 “Alligators,” Chapter 66 “Fish,” Chapter 67 “Nongame Species,” Chapter 68 “Endangered
Species,” Chapter 83 “Federal-State Agreements,” Chapter 88 “Endangered Plants”
31 Texas Administrative Code Part 2 Chapters 65 “Wildlife” and Chapter 69 “Resource Protection”
USDOT Guidance, Policies, and Agreements
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“Exemplary Ecosystem Initiatives Memorandum” (2003)
“Federal Interagency Memorandum of Understanding for Implementation of the Endangered Species Act” (FHWA 1995)
“Management of the Endangered Species Act (ESA) Environmental Analysis and Consultation Process” (2002)
“Joint Agency Agreement on the Endangered Species Act Formal Consultation Process” (2005)
“Migratory Bird Treaty Act and Executive Order 13186” (2001)
“Guidance on Invasive Species” (1999)
State Guidance
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Chapters 67, 68, and 88 of the Texas Parks and Wildlife Department Code
TxDOT Guidance, Policies, and Agreements
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TxDOT-TPWD MOU Best Management Practices Programmatic Agreement (2014)
TxDOT-TPWD MOU Threshold Table Programmatic Agreement (2014)
TxDOT-TPWD MOU Tier II Site Assessment Programmatic Agreement (2014)
“Guidance on Environmentally Beneficial Landscaping Practices and NEPA Compliance” (July 5, 1996)
Water Resources including Groundwater and Surface Water Quality, Floodplains, and Wetlands
Federal Laws and Regulations
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Clean Water Act of 1972 (33 USC §§1251-1387)
Safe Drinking Water Act (42 USC §§300f-300j(6), PL 93-523, as amended), including “Protection of Underground
Sources of Drinking Water” (Sole Source Aquifers)
Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977 (33 USC §§1251-1376, PL 95-217, as
amended through 2002), including but not limited to the following:
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Section 303(d) (impaired waters, water quality);
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Rivers and Harbors Act of 1899 (33 USC §§401 and 403)
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Section 401 (water quality certification through the Texas Pollutant Discharge Elimination System
(TPDES) and Louisiana Pollutant Discharge Elimination System (LPDES), under EPA administration);
and,
Section 404 (discharge into or dredge activities related to waters of the U.S., including wetlands).
Section 9 Navigable Waterway Permit for projects within the Texas Coastal Management Program
requiring coordination with the U.S. Coast Guard
Section 10 Navigable Waterway Permit for projects not within the Texas Coastal Management Program
requiring coordination with USACE
General Bridge Act of 1946
National Flood Insurance Act of 1968, as amended (42 USC §40011)
Floodplain Management and Protection of Wetlands (44 CFR 9)
Emergency Wetlands Resources Act of 1986 (16 USC 3901 – 3932)
Watershed Protection and Flood Prevention Act (16 USC §1001-1009)
Soil and Water Resources Conservation Act of 1977 (16 USC 2001 et seq., PL 95-192)
Coastal Wetlands Planning Protection and Restoration Act (16 USC §§3951-3956)
Estuaries and Clean Waters Act of 2000 (33 USC §§ 2901-2909)
Coastal Zone Management Act of 1972 (16 USC 1451 – 1464, PL 92-583, as amended)
Coastal Zone Act Reauthorization Amendments of 1990 (16 USC 1451, PL 101-508)
“Federal Consistency with Approved Coastal Management Programs” (15 CFR Part 930)
Coastal Barrier Resources Act (16 USC 3501- 3510, 42 USC 4028, PL 97-348, as amended)
“Bridges, Structures, and Hydraulics” (23 CFR Part 650)
Executive Orders
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EO 11988 “Floodplain Management” (42 FR 269 1977), including Section 2 amendments by EO 12148 (44 FR §43239
1979)
EO 11990 “Protection of Wetlands” (42 FR 26961 1977)
EO 12088 “Federal Compliance with Pollution Control Standards” (43 FR 47707 1978)
EO 12148 “Federal Emergency Management”
Texas Administrative Code and Statutes
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Texas Water Code: Title 2 Water Administration, Title 4 General Law Districts, Title 6 Surface Water Authorities.
Texas Natural Resources Code: Title 6 Timber, Title 8 Acquisition of Resources, and Title 12 Wetlands and Wetland
Mitigation
Texas Transportation Code: Title 6 Roadways (Chapter 254 Drainage on Public Roads) and Title 4 Texas Coastal
Waterway Act Section 51.009 Beneficial Use of Dredge Material
30 Texas Administrative Code Part 1: Texas Commission on Environmental Quality (includes Air, Water, and Waste
authorizing code)
USDOT Guidance, Policies, and Agreements
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USDOT Order 5650.2 “Floodplain Management and Protection” (1979)
USDOT Order 5660.1A “Preservation of the Nation’s Wetlands” (1978)
USDOT – USACE Memorandum of Agreement “Section 404”
“Location of Hydraulic Design Encroachment on Floodplains” (23 CFR 650-A)
FHWA – U.S. Coast Guard Memorandum of Understanding “Preparation and processing of Environmental Documents”
(1981)
“Wetland Delineation and Mitigation” (1994)
“Transportation Planning – The Watershed Connection” (1996)
“Coastal Barrier Resources Act Memo” (1984) and “Coastal Barrier Resources Act Flowchart” (1998)
“Federal Consistency Requirements” (2003)
“Specifying Management Measures for Nonpoint Sources of Nonpoint Pollution in Coastal Waters” (1993)
Many other guidance documents related to Section 404, stormwater management, best management practices, and
other water quality-related issues can be found at the following websites:
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http://www.environment.fhwa.dot.gov/guidebook/chapters/v1ch11.asp
http://www.environment.fhwa.dot.gov/guidebook/chapters/v1ch12.asp
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http://www.environment.fhwa.dot.gov/guidebook/chapters/v1ch13.asp
TxDOT Guidance, Policies, and Agreements
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TxDOT-TCEQ 401 Certification Streamlining for the NW Permitting Process and the TxDOT-USACE 404 Permit PreApplication Process (2002)
“Stormwater Pollution Prevention Plan Checklist” and “Stormwater Management Guidelines for Construction Activities”
(2002)
Public Lands including Section 4(f) and Section 6(f)
Federal Laws and Regulations
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Land and Water Conservation Fund Act (LWCF) (16 USC §§460-4 to 460-11, as amended) Section 6(f)
USDOT Act of 1966 (49 USC §1653(f), as amended in 49 USC §303, 23 USC §138) regarding Section 4(f)
Game and Bird Preserves (16 USC §§671-698, as amended)
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“Fish and Game Sanctuaries in National Forests” (§ 694-694b)
“Big Thicket National Preserve” (§ 698f-698m)
Wild and Scenic Rivers Act (16 USC §§1271-1287, PL 90-542, as amended)
Wilderness Act of 1964, as amended (16 USC §§1131-1136)
National Trails System Act of 1968 (16 USC §§1241 – 1251, as amended)
Urban Park and Recreation Recovery Act of 1978 (16 USC 2501 et seq.)
“Parks Forests and Public Property: Land Uses” (36 CFR Part 251)
“Public Lands: Interior, Management Areas” (43 CFR Part 8350)
Executive Orders
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“Wild and Scenic Rivers and National Trails Memorandum” from the Executive Office of the President (1979)
Texas Administrative Code and Statutes
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Parks and Wildlife Code Title 3 (Parks): Chapter 22 “State Parks,” Chapter 23 National Parks, National Seashores, and
other Federal Lands,” Chapter 25 “Water District and River Authority Parks,” Chapter 26 “Protection of Public Parks and
Recreational Lands, Chapter 28 “Texas Trails System”
Parks and Wildlife Code Title 5 (Wildlife and Plant Conservation): Chapter 81 “Management Areas and Preserves,”
Chapter 82 “Statutory Sanctuaries and Preserves,” Chapter 83 “Federal-State Agreements,” Chapter 90 “Access to
Protected Freshwater Areas,” Chapter 131 “Cameron County (Audubon Society Lands),” Chapter 237 “Kleberg County
(Audubon Society Lands)”
31 Texas Administrative Code Part 2 Chapter 59 (state parks, natural areas, wildlife management areas, historic sites,
and recreation areas)
USDOT Guidance, Policies, and Agreements
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Nationwide Programmatic Section 4(f) Evaluations and Approvals (48 FR 38139 1983, 52 FR 3116 1987, 52 FR 3118
1987)
“Section 4(f) Policy Paper” (2005)
Guidance for Determining De Minimis Impacts to Section 4(f) Resources (2005)
Technical Advisory 6640.8A “Guidance for Preparing and Processing Environmental and Section 4(f) Documents” (1987)
“Alternatives Selection Process for Projects Involving Section 4(f) of the DOT Act” (1989)
“Wild and Scenic Rivers System” (1981)
Agricultural Lands
Federal Laws and Regulations
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Farmland Protection Policy Act of 1981 (7 USC §§ 4201-4209)
Texas Administrative Code and Statutes
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Texas State Agriculture Policy (4 TAC § 2.003)
USDOT Guidance, Policies, and Agreements
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“Guidelines for Implementing the Final Rule of the Farmland Protection Policy Act for Highway Projects” (1989)
“Right-of-Way: I-69 Land Consolidation (Mitigation of Agricultural Acquisition along the I-69 Corridor)” (2000)
TxDOT Guidance, Policies, and Agreements
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Use of Farmland Conversion Impact Rating for Corridor Type Projects (Form AD-1006) (1983)
Federal Laws and Regulations
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Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) [23 USC §§103 (i)(13), 23 USC §§133 (b)(11)]
environmental policy and mitigation funding options laid out by ISTEA may be implemented during planning and
construction of transportation projects, permitting processes, and compensation for environmental effects
Water Bank Act of 1970 (16 USC 1301 – 1311) and the Water Bank Program (7 CFR Part 752)
North American Wetlands Conservation Act (16 USC §§ 4401-4412)
Migratory Bird Conservation Act (16 USC §§ 715-715d, 715e, 715f-r)
Partnerships for Wildlife Act (16 USC § 3744) and the pending update to the Partners for Wildlife Act (S.260 and H.R.
2018, House approved as of 20 September 2006, appropriations through 2011).
EPA and USACE Memorandum of Agreement (1990) defining the sequential process of avoidance, minimization, and
compensation (mitigation) for unavoidable adverse impacts to waters and wetlands (see also USACE Fort Worth District
checklist 2002)
“Mitigation of Impacts to Wetlands and Natural Habitat” (23 CFR Part 777)
Texas Administrative Code and Statutes
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Texas Transportation Code Title 6 §227.028 Environmental Mitigation
USDOT Guidance, Policies, and Agreements
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“Federal-aid Eligibility of Wetland and Natural Habitat Mitigation” (2005)
“Funding for Establishment of Wetland and Mitigation Banks” (1994)
“Use of Private Wetland Mitigation Banks as Compensation Mitigation for Highway Project Impacts” (1995)
“Participation in Funding for Ecological Mitigation” (1995)
TxDOT Guidance, Policies, and Agreements
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“Framework and Strategies from the Texas Ecosystem Banking Workshop” (2004)
TxDOT contribution to In Lieu Fee Programs and Resource Agency Priorities for Habitat and Wetland Conservation
(2001)
Air Quality
Federal Laws and Regulations
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Clean Air Act Amendments of 1990 (42 USC 7401 et seq., PL 101-549)
“Control of Emissions of Hazardous Air Pollutants from Mobile Sources” (2001)
“Transportation Conformity Rule” (40 CFR Part 50-99)
Texas Administrative Code and Statutes
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30 Texas Administrative Code Part 1: Texas Commission on Environmental Quality (includes authorizing code for Air,
Water, and Waste)
TxDOT Guidance, Policies, and Agreements
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Air Quality Standard Operating Practice and Air Quality Standards of Uniformity, March 2013
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National Memorandum of Understanding between USDOT and EPA on Transportation Conformity (2000)
Interim Guidance on Air Toxic Analysis in NEPA Documents (FHWA December 2012)
USDOT Guidance, Policies, and Agreements
Hazardous Waste
Federal Laws and Regulations
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Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 USC 9601-9675, PL 96-510,
as amended)
Superfund Amendments and Reauthorization Act of 1986 (SARA) (PL 99-499, codified in CERCLA)
Resource Conservation and Recovery Act of 1976 (RCRA) (42 USC 6901-6992k, as amended)
Solid Waste Disposal Act of 1965 (42 USC 6901 et seq.)
Texas Administrative Code and Statutes
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30 Texas Administrative Code Part 1: Texas Commission on Environmental Quality (includes Air, Water, and Waste
authorizing code)
USDOT Guidance, Policies, and Agreements
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“Supplemental Hazardous Waste Guidance” (1997)
Demographic and Social Issues, including Environmental Justice
Federal Laws and Regulations
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Civil Rights Act of 1964, Title VI (42 USC 2000D, et seq.)
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 USC 4601 et seq.)
Americans with Disabilities Act (42 USC 12101)
Emergency Planning and Community Right to Know Act of 1986 (42 USC 11001-11050)
Executive Orders
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EO 12898 “Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations”
EO 13045 “Protection of Children from Environmental and Safety Risks”
EO 13084 “Consultation and Coordination with Indian Tribal Governments”
USDOT Guidance, Policies, and Agreements
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DOT Order 5301.1 “Programs, Policies and Procedures Affecting American Indians, Alaska Natives, and Tribes” (1999)
Land Use
Texas Administrative Code and Statutes
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Texas Natural Resources Code, Title 8 Acquisition of Resources, Chapter 183 Conservation Easements
Cultural Resources
Federal Laws and Regulations
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Archaeological and Historic Preservation Act of 1974 (16 USC 469)
Archaeological Resources Protection Act of 1979 (16 USC 470 et seq.)
National Historic Preservation Act of 1966 (16 USC 470f)
Act for Preservation of American Antiquities of 1906 (16 USC 431-433)
Protection of Historic and Cultural Properties (36 CFR Part 800.2(a)(4))
Protection of Archaeological Resources (43 CFR Part 7)
Native American Graves Protection and Repatriation Act of 1990 (25 USC 3001 – 3013, PL 101 – 601) and Native
American Graves Protection and Repatriation Regulations (43 CFR Part 10)
American Indian Religious Freedom Act of 1978 (42 USC 1996, PL 95-341)
USDOT Act of 1966 (49 USC 303, 23 USC 138) “Section 4(f)”
Historic Bridge Program (23 USC 144(o))
Executive Orders
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EO 11593 “Protection and Enhancement of the Cultural Environment” (1971)
EO 13061 “American Heritage Rivers” (62 FR 48445 1997)
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EO 13287 “Preserve A
merica” (2003)
Texas Administrative Code and Statutes
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Texas Natural Resource Code, Title 9 Heritage, Chapter 191 Antiquities Code
USDOT Guidance, Policies, and Agreements (also see Public Land, Section 4(f) resources)
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Programmatic Agreement among FHWA – THC (SHPO) – Advisory Council on Historic Preservation (ACHP) – TxDOT
under authority of 36 CFR 800.4 (2005)
“Federal Highway Administration Guidance on the Consideration of Historic and Archeological Resources in the Highway
Project
Development
Process”
(1988)
and
updates/additions
to
this
policy
found
at
http://environment.fhwa.dot.gov/guidebook/chapters/v2ch10.asp
Noise
Federal Laws and Regulations
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Noise Control Act of 1972 (42 USC 4901 et seq.)
Highway Noise Standards (23 USC 109(h) and 109 (i), PL 91-605 §136(b))
“Procedures for Abatement of Highway Traffic Noise and Construction Noise” (23 CFR part 772)
TxDOT Guidance, Policies, and Agreements
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“Guidelines for Analysis and Abatement of Highway Traffic Noise” (2011)
Visual
Federal Laws and Regulations
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Highway Beautification Act (23 USC 131, 136, 319, PL 89-285), including “Landscaping and Scenic Enhancement” (23
USC 319)
“Right of Way and Environment” (23 CFR Parts 750 – 752)
Texas Administrative Code and Statutes
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Light Pollution on State-Funded Facilities (Texas Health and Safety Code, Subtitle F §435.002)
USDOT Guidance, Policies, and Agreements
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“Visual Impact Assessment for Highway Projects” (1990)
“Corridor Management Planning at a Glance” (n.d.)