The FHWA is issuing the attached guidance on implementing 23 U.S.C. § 329, a new provision of law added to Title 23 by §6006 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). This guidance discusses the new eligibility of Federal-aid funds for the control of noxious weeds and aquatic noxious weeds and establishment of native species provisions under this section.
AUTHORITY: SAFETEA-LU § 6006, 23 U.S.C. § 329
BACKGROUND: On August 10, 2005, the President signed into law the new surface transportation act, SAFETEA-LU. Section 6006 of SAFETEA-LU includes a provision that makes activities for the control of noxious weeds and the establishment of native species eligible for Federal-aid funds under the NHS and the STP. The control of terrestrial noxious weeds and aquatic weeds is commonly done by maintenance districts or contracted crews of each State department of transportation. Historically, maintenance activities have been the responsibility of the State and therefore have not been eligible for Federal-aid dollars.
The SAFETEA-LU makes certain weed control activities and the establishment of native plants eligible for NHS and STP funds. The addition of Section 329 to Title 23 U.S. Code not only provides for Federal-aid eligibility for weed control by State vegetation managers, but also supports their work concurrently with, in advance of, or following the construction of a project funded under this title. This flexibility should be of great assistance to State vegetation managers to respond to weed infestations at any time.
The 1987 STURAA required that one-quarter of 1 percent of the landscape budget on a federally-funded project be reserved for establishment of native wildflowers (see 23 CFR §§ 752.4 and 752.11). SAFETEA-LU Section 6006 expands eligibility to establishment of native plants, which include not only native wildflowers, but also grasses, shrubs, trees, and vines. This additional eligibility for establishment of native plants will be beneficial in supplementing FHWA's environmental stewardship efforts in the areas of wetland mitigation, wildlife habitat planting, native plant restoration, and plant community preservation.
Questions regarding this guidance should be directed to Ms. Bonnie Harper-Lore, Office of Natural and Human Environment, (651) 291-6104, bonnie.harper-lore@fhwa.dot.gov.
Attachment 1 - Guidance
Attachment 2 - SEC. 6006. Environmental Restoration and Pollution Abatement
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GUIDANCE:
"Eligibility for control of noxious weeds and aquatic noxious weeds and establishment of native species" 23 USC § 329
1. Purpose:
The purpose of this guidance is to discuss the new eligibility of Federal-aid funds for the control of noxious weeds and aquatic noxious weeds and establishment of native species provisions contained in Section 6006 of the SAFETEA-LU. A copy of Section 6006 is attached to this guidance.
2. Definitions:
The following are definitions for terms used in SAFETEA-LU Section 6006 and this guidance:
Abatement of Stormwater Runoff: avoiding and minimizing impacts on hydrology and water quality by protecting native vegetation and soils that provide natural processes to promote stormwater detention and infiltration.
Aesthetic Enhancement: landscape, plantings, beautification, and native wildflowers per CFR 23, Part 752, Landscape and Roadside Development.
Cooperative Weed Management Area: A Cooperative Weed Management Area is a partnership of Federal, State, and local government agencies; tribes; individuals; and various interested groups that manage noxious weeds or invasive plants in a defined area.
Fuel Breaks: refers to elimination of flammable noxious weed biomass and restoration of native plants along highways to buffer or limit wildfires that impair driver visibility, and safety.
Integrated Roadside Vegetation Management: a long term approach to vegetation management that systematically evaluates each area to be managed; determines which plant communities best fit the area; develops procedures that will encourage, enhance or reestablish desirable plant communities; provides self sustaining, diversified, visually interesting vegetation; keeps safety and an improved environment as priorities; and utilizes the most beneficial methods to prevent or correct undesirable situations caused by disturbance or less than optimum ground cover.
Invasive Species: "means an alien species whose introduction does or is likely to cause economic or environmental harm or harm to human health." (EO 13112, Invasive Species, February 3, 1999)
Native Plant: "means, with respect to a particular ecosystem, a species that, other than as a result of an introduction, historically occurred or currently occurs in that ecosystem." (EO 13112)
Nonnative Plant: means a plant species that did not originally exist in the United States, but was introduced for human purpose. A plant moved from a region in which it is native to a new region of the United States where it is not, is also considered "nonnative." A naturalized plant is nonnative.
Noxious Weed: The term "noxious weed" means any plant or plant product that can directly or indirectly injure or cause damage to crops (including nursery stock or plant products), livestock, poultry, or other interests of agriculture, irrigation, navigation, the natural resources of the United States, the public health, or the environment. (Plant Protection Act, 7 U.S.C. § 7701 et seq.).
Restoration: a multidisciplinary approach to the repair of land disturbances with the goal to reestablishing an appropriate native plant cover that is site-specific. Restoration is used in wetland, grassland, or forest mitigation.
Stabilization of Soil: means utilization of erosion and sediment control measures such as mulching before, during and after maintenance and construction activities.
State Noxious Weed: Most States have legislation regarding the identification and treatment of noxious weeds within their borders in order to protect agriculture, human health, and the environment. State laws are generally tied to Federal law, the Plant Protection Act, 7 U.S.C. § 7701 et seq. States that do not currently have legislation dealing with noxious weeds should refer to State law(s) relating to noxious weeds in adjacent States, for planning and decision-making purposes.
3. Applicability:
The NHS and STP funds may be used for vegetation management activities that include control of terrestrial and aquatic noxious weeds, and the establishment of native plant species. Federal-aid funds made available to carry out § 329 may be used for the following activities, if these activities are related to transportation projects funded under Title 23:
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Establishment of plants. This category refers to the establishment of native or nonnative species, but not "known invasive plants" or noxious weeds for one or more of these functions: abatement of storm water runoff, stabilization of soil, and/or aesthetic enhancement.
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Management of plants (noxious weeds): Activities eligible for Federal funding under vegetation management include: weed prevention; rapid response to new weed infestations; weed control; restoration; and annual monitoring for plants which have been determined by State or local transportation authorities to impair or impede the establishment, maintenance, or safe use of a transportation system.
23 U.S.C. § 329 specifically lists the following activities as being eligible under the establishment and management of plants categories listed above:
- Right-of-way surveys to determine management requirements to control Federal or State noxious weeds: These vegetation surveys or inventories may be accomplished with new technology and incorporated into the State's GIS system, which will allow for more efficient planning and efficient use of limited resources whileproviding successful weed control, and documentation of success.
Examples of current best practices for vegetation inventories are available through:
- The Nature Conservancy, which provides information on a pocket PC unit to note infestations and track them over time – the Weed Information Management System (WIMS). For more information about WIMS, see: http://tncweeds.ucdavis.edu/wims.html. This system is suitable for highway corridors and compatible with GIS databases.
- The North American Weed Management Association, which offers practical field mapping standards. See: http://www.nawma.org/.
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Establishment of plants, whether native or nonnative with a preference for native to the maximum extent possible: In carrying out eligible activities under this section, each State should be guided by their State natural heritage program and natural heritage list of native plants.
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In order to assure a sustainable native plant program once native plant preferences emerge, State growers and/or potential new growers should be notified in order to prepare for expanded demand of native seed.
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Control or elimination of plants (noxious weeds): Eligible activities include: cultural, mechanical, bio-control, and/or chemical methods commonly used in corridor vegetation management for plants which have been determined by State or local transportation authorities to impair or impede the establishment, maintenance, or safe use of a transportation system. To accomplish an integrated approach to control or eliminate noxious weeds, a vegetation management plan, based on inventories, is necessary. The vegetation management plan should be structured to emphasize a combination of tools and methods so as to prevent weed resistance to any one tool.
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Elimination of plants to create fuel breaks for the prevention and control of wildfires: Included are activities for the removal of those plants that are considered a fire hazard in a region as well as the addition of native grasses, forbs, and/or shrubs considered fire tolerant. It is recommended that flammable plants like Kochia, Russian thistle, cheat grass, Sahara mustard, and Medusa-head rye be eradicated before attempting to establish native plants so that they will not out compete the new plantings.
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Training: This category includes updated, annual education of State internal forces, contracted crews, and construction contractors in the use of integrated roadside vegetation management in all highway corridor activities, as well as public outreach and coordination with other public or private weed control initiatives and cooperative weed management areas adjoining the highway right of way. For more information about cooperative weed management areas see: http://www.weedcenter.org/weed_mgmt_areas/wma_overview.html
In general these activities may be carried out concurrently with, in advance of, or following the construction of a project funded under this title. However, activities in advance of a construction project must be related to a transportation project funded under Title 23 and must be carried out in accordance with all applicable requirements of Federal law (including regulations) and State transportation planning processes.
Questions regarding this guidance should be directed to Ms. Bonnie Harper-Lore, HEPN-30, (651) 291-6104, bonnie.harper-lore@fhwa.dot.gov .
PUBLIC LAW 109–59–AUG. 10, 2005
SEC. 6006. ENVIRONMENTAL RESTORATION AND POLLUTION ABATEMENT; CONTROL OF NOXIOUS WEEDS AND AQUATIC NOXIOUS WEEDS AND ESTABLISHMENT OF NATIVE SPECIES.
(a) MODIFICATION TO NHS/STP FOR ENVIRONMENTAL RESTORATION, POLLUTION ABATEMENT, CONTROL OF NOXIOUS WEEDS AND AQUATIC NOXIOUS WEEDS.–
(1) MODIFICATIONS TO NATIONAL HIGHWAY SYSTEM.–Section 103(b)(6) of title 23, United States Code, is amended by adding at the end the following:
"(Q) Environmental restoration and pollution abatement in accordance with section 328.
"(R) Control of noxious weeds and aquatic noxious weeds and establishment of native species in accordance with section 329.".
(2) MODIFICATIONS TO SURFACE TRANSPORTATION PROGRAM.–Section 133(b) of title 23, is amended by striking paragraph (14) and inserting the following:
"(14) Environmental restoration and pollution abatement in accordance with section 328.
"(15) Control of noxious weeds and aquatic noxious weeds and establishment of native species in accordance with section 329.".
(b) ELIGIBLE ACTIVITIES.–Chapter 3 of title 23, United States Code, is further amended by adding after section 327 the following:
"§ 328. Eligibility for environmental restoration and pollution abatement
"(a) IN GENERAL.–Subject to subsection (b), environmental restoration and pollution abatement to minimize or mitigate the impacts of any transportation project funded under this title (including retrofitting and construction of stormwater treatment systems to meet Federal and State requirements under sections 401 and 402 of the Federal Water Pollution Control Act (33 U.S.C. 1341; 1342)) may be carried out to address water pollution or environmental degradation caused wholly or partially by a transportation facility.
"(b) MAXIMUM EXPENDITURE.–In a case in which a transportation facility is undergoing reconstruction, rehabilitation, resurfacing, or restoration, the expenditure of funds under this section for environmental restoration or pollution abatement described in subsection (a) shall not exceed 20 percent of the total cost of the reconstruction, rehabilitation, resurfacing, or restoration of the facility.
"§ 329. Eligibility for control of noxious weeds and aquatic noxious weeds and establishment of native species
"(a) IN GENERAL.–In accordance with all applicable Federal law (including regulations), funds made available to carry out this section may be used for the following activities if such activities are related to transportation projects funded under this title:
"(1) Establishment of plants selected by State and local transportation authorities to perform one or more of the following functions: abatement of stormwater runoff, stabilization of soil, and aesthetic enhancement.
"(2) Management of plants which impair or impede the establishment, maintenance, or safe use of a transportation system.
"(b) INCLUDED ACTIVITIES.–The establishment and management under subsection (a)(1) and (a)(2) may include–
"(1) right-of-way surveys to determine management requirements to control Federal or State noxious weeds as defined in the Plant Protection Act (7 U.S.C. 7701 et seq.) or State law, and brush or tree species, whether native or nonnative, that may be considered by State or local transportation authorities to be a threat with respect to the safety or maintenance of transportation systems;
"(2) establishment of plants, whether native or nonnative with a preference for native to the maximum extent possible, for the purposes defined in subsection (a)(1);
"(3) control or elimination of plants as defined in subsection(a)(2);
"(4) elimination of plants to create fuel breaks for the prevention and control of wildfires; and
"(5) training.
"(c) CONTRIBUTIONS.–
"(1) IN GENERAL.–Subject to paragraph (2), an activity described in subsection (a) may be carried out concurrently with, in advance of, or following the construction of a project funded under this title.
"(2) CONDITION FOR ACTIVITIES CONDUCTED IN ADVANCE OF PROJECT CONSTRUCTION.–An activity described in subsection (a) may be carried out in advance of construction of a project only if the activity is carried out in accordance with all applicable requirements of Federal law (including regulations) and State transportation planning processes.".
(c) CONFORMING AMENDMENT.–The analysis for <<NOTE: 23 USC 301.>> chapter 3 of title 23 is further amended by adding after the item relating to section 327 the following:
"328. Eligibility for environmental restoration and pollution abatement.
"329. Eligibility for control of noxious weeds and aquatic noxious weeds and establishment of native species.".
