23 U.S.C. § 169 — Development of programmatic mitigation plans

(a) In General. As part of statewide or metropolitan transportation planning, a State or metropolitan planning organization may develop one or more "programmatic mitigation plans" to address the potential environmental impacts of future transportation projects. (b) Scope. (1) Scale: the plan may be developed on a regional, ecosystem, watershed, or statewide scale. (2) Resources: it may cover multiple environmental resources in one area, or focus on a specific resource, such as aquatic resources, parkland, or wildlife habitat. (3) Project impacts: it may address impacts from all projects in an area, or focus on a specific type of project. (4) Consultation: the State or metropolitan planning organization decides the plan's scope, but must do so in consultation with the agency or agencies that have jurisdiction over the resources the plan addresses. (c) Contents. A programmatic mitigation plan may include (1) an assessment of the current condition of environmental resources in the plan's area, including recent trends and potential threats to them; (2) an assessment of opportunities to improve those resources overall through strategic mitigation; (3) standard measures for mitigating certain types of impacts; (4) parameters for determining appropriate mitigation for certain impacts, such as mitigation ratios or criteria for choosing mitigation sites; (5) adaptive management procedures, such as protocols for monitoring predicted impacts over time and adjusting mitigation measures based on what the monitoring shows; and (6) acknowledgment of specific statutory or regulatory requirements that must still be satisfied when determining mitigation for certain resources. (d) Process. Before adopting a programmatic mitigation plan, a State or metropolitan planning organization must (1) consult with each agency that has jurisdiction over the environmental resources the plan considers; (2) make a draft of the plan available for review and comment by the relevant environmental resource agencies and the public; (3) consider any comments received from those agencies and the public; and (4) address those comments in the final plan. (e) Integration With Other Plans. A programmatic mitigation plan may be integrated with other plans, including watershed plans, ecosystem plans, species recovery plans, growth management plans, and land use plans. (f) Consideration in Project Development and Permitting. If a programmatic mitigation plan has been developed under this section, any federal agency responsible for environmental reviews, permits, or approvals for a transportation project must give the plan's recommendations substantial weight when carrying out its duties under the National Environmental Policy Act of 1969 or other federal environmental law. (g) Preservation of Existing Authorities. Nothing in this section limits the use of programmatic approaches to reviews under the National Environmental Policy Act of 1969.