Environmental Impact and Related Procedures--Programmatic Agreements and Additional Categorical Exclusions |
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Gregory G. Nadeau
Federal Highway Administration
Therese W. McMillan
Federal Transit Administration
October 6, 2014
[Federal Register Volume 79, Number 193 (Monday, October 6, 2014)]
[Rules and Regulations]
[Pages 60100-60116]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23660]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 771
Federal Transit Administration
49 CFR Part 622
[Docket No. FHWA-2013-0049]
FHWA RIN 2125-AF59]
FTA RIN 2132-AB14
Environmental Impact and Related Procedures--Programmatic
Agreements and Additional Categorical Exclusions
AGENCY: Federal Highway Administration (FHWA), Federal Transit
Administration (FTA), Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule amends the FHWA and FTA joint procedures that
implement the National Environmental Policy Act (NEPA) by adding new
categorical exclusions (CE) for FHWA and FTA; allowing State
departments of transportation (State DOT) to process certain CEs
without FHWA's detailed project-by-project review and approval as long
as the action meets specific constraints; and adding a new section on
programmatic agreements between FHWA and State DOTs that allow State
DOTs to apply FHWA CEs on FHWA's behalf, as described in section 1318
of the Moving Ahead for Progress in the 21st Century Act (MAP-21).
DATES: Effective on November 5, 2014.
FOR FURTHER INFORMATION CONTACT: For the FHWA: Owen Lindauer, Ph.D.,
Office of Project Delivery and Environmental Review (HEPE), (202) 366-
2655, or Jomar Maldonado, Office of the Chief Counsel (HCC), (202) 366-
1373, Federal Highway Administration,
[[Page 60101]]
1200 New Jersey Ave. SE., Washington, DC 20590-0001. For the FTA: Megan
Blum, Office of Planning and Environment (TPE), (202) 366-0463, or
Nancy-Ellen Zusman, Office of Chief Counsel (TCC), (312) 353-2577.
Office hours are from 8:00 a.m. to 4:30 p.m. e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
General Background
On July 6, 2012, President Obama signed into law MAP-21 (Pub. L.
112-141, 126 Stat. 405), which contains new requirements that the FHWA
and the FTA, hereafter referred to as the ``Agencies,'' must meet
related to the NEPA (42 U.S.C. 4321 et seq.). The Agencies' joint
procedures at 23 CFR part 771 describe how the Agencies comply with
NEPA and the Council on Environmental Quality (CEQ) regulations
implementing NEPA; and include CEs that identify actions the Agencies
have determined do not normally have the potential for significant
environmental impacts and therefore do not require the preparation of
an environmental assessment (EA) or environmental impact statement
(EIS), pursuant to 40 CFR 1508.4. Section 771.117 establishes CEs for
FHWA actions and Sec. 771.118 establishes CEs for FTA actions.
Sections 771.117(c) and 771.118(c) establish specific lists of
categories of actions, or ``(c)-list'' CEs, that the Agencies have
determined normally do not individually or cumulatively have a
significant effect on the human environment and do not require an EA or
EIS. Sections 771.117(d) and 771.118(d) list examples of actions that
may be categorically excluded from further NEPA review but require
additional documentation demonstrating that the specific criteria for a
CE are satisfied and that no significant environmental impacts will
result from the action. The list of examples of actions that may be
excluded as ``(d)-list'' CEs is not exclusive and the authority may be
used for actions that are not included in the list of examples.
Additionally, Sec. Sec. 771.117 and 771.118 include the requirement
for considering unusual circumstances, which is how the Agencies
consider extraordinary circumstances, in accordance with the CEQ
regulations. The presence of ``unusual circumstances'' requires that
the Agencies ``conduct appropriate environmental studies to determine
if the CE classification is proper'' pursuant to Sec. Sec. 771.117(b)
or 771.118(b). The potential for unusual circumstances for a project
does not automatically trigger an EA or EIS. The FTA requires Agency
approval for all CEs. The FHWA requires detailed project-by-project
review and approval only for (d)-list CEs.
Section 1318 of MAP-21 requires the Secretary of Transportation to:
(1) survey and publish the results of the use of CEs for transportation
projects since 2005 and solicit requests for new CEs; (2) publish a
notice of proposed rulemaking (NPRM) to propose new CEs received by the
Secretary to the extent that the CEs meet the criteria for a CE under
40 CFR 1508.4 and 23 CFR part 771; and (3) issue an NPRM to move three
actions found in 23 CFR 771.117(d)(1) through (3) to paragraph (c) to
the extent that such movement complies with the criteria for a CE under
40 CFR 1508.4. In addition, section 1318(d) directs the Secretary to
seek opportunities to enter into programmatic agreements, including
agreements that would allow a State to determine, on behalf of FHWA,
whether a project is categorically excluded. The Agencies are carrying
out this rulemaking on behalf of the Secretary.
This final rule contains a description of the notice of NPRM issued
on September 19, 2013 (78 FR 57587), a summary of public comments
received on that NPRM and responses to those comments, and a
description of the final regulatory text at the end of this rule.
Changes to the regulatory text not described in the summary and
response to comments are described in the Section-by-Section Analysis.
Following the Section-by-Section Analysis, this rule explains the
various rulemaking requirements that apply and how they have been met.
Notice of Proposed Rulemaking
On September 19, 2013, the Agencies published an NPRM proposing
amendments to 23 CFR 771.117 and 771.118 as mandated by sections 1318
of MAP-21. The Agencies proposed to: (1) add four new CEs for FHWA and
five new CEs for FTA, (2) allow FHWA to process CEs in Sec.
771.117(d)(1) through (3) as (c)-list CEs when the action meets
specified constraints, and (3) add a new section allowing programmatic
agreements between FHWA and State DOTs to permit State DOTs to apply
FHWA CEs on the Agency's behalf. The NPRM sought comments on how the
Agencies proposed to interpret and implement the provision.
The public comment period closed on November 18, 2013. The Agencies
considered all comments received when developing this final rule.
Summary of and Responses to Comments
The Agencies received comments from a total of 30 entities, which
included 12 State DOTs (Alaska, California, Colorado, Florida, Ohio,
Oklahoma, Oregon, Pennsylvania, Texas, Virginia, Wyoming, and
Washington), 6 transit and rail agencies (Los Angeles County
Metropolitan Transportation Authority, Metropolitan Transportation
Authority of New York, New Jersey Transit, San Francisco Bay Area Rapid
Transit District, Southern California Regional Rail Authority, and Utah
Transit Authority), 4 public interest groups (National Trust for
Historic Preservation, Natural Resources Defense Council, Southern
Environmental Law Center, and Transportation Transformation Group), 3
professional associations (American Association of State Highway and
Transportation Officials, American Public Transportation Association,
and American Road and Transportation Builders Association), 2 Federal
agencies (U.S. Army Corps of Engineers and U.S. Department of the
Interior), 1 Indian tribe (Osage Nation Historic Preservation Office),
1 regional transportation consortium (Alameda Corridor-East
Construction Authority, Orange County Transportation Authority, San
Bernardino Associated Governments, and Southern California Regional
Rail Authority) and 1 anonymous comment. The majority of commenters
suggested additional clarifications on the use of CEs, including
expanding or limiting their scope. The comments submitted have been
organized by theme or topic.
General
The FTA received 11 comments generally in support of the proposed
rule change. Six of the comments provided overall support for all
changes, while one comment specifically supported the new CEs added at
Sec. 771.118(c)(14), (15), and (16). Four comments supported the
changes made to Sec. 771.118(d), one of which offered additional
supporting information.
The FHWA received two comments that supported the consideration of
programmatic CE agreements in Sec. 771.117(g). Two comments supported
the statement in the preamble that early acquisitions of rights-of-way
under Section 108(d) may be approved as (d) list CEs. One comment
supported the six conditional constraints in 771.117(e) to condition
the move of (d)-listed CE actions to the (c)-list. The FHWA reviewed
109 comments on the new CEs, including the former (d)-list CEs
[[Page 60102]]
moved to the (c)-list. Additionally, FHWA received 28 comments on
programmatic agreements in Sec. 771.117(g).
The FTA and FHWA appreciate the comments received on the proposed
rule.
The FTA received a comment that suggested the numbering of the new
CEs was incorrect. The numbering presented in the NPRM (i.e., the new
CEs begin with Sec. 771.118(c)(14)) is correct as FTA recently added
two new CEs at Sec. 771.118(12) and (13) through a separate rulemaking
(see 79 FR 2107).
CE Development
Five State DOTs and two professional associations noted that only a
handful of the new CEs proposed by transportation agencies were
considered appropriate to include and additional effort should have
been expended to identify more.
The Agencies are guided by their experience with CEs and considered
the current administrative process for CE NEPA compliance. The Agencies
also considered the survey results made public in the U.S. Department
of Transportation National Environmental Policy Act Categorical
Exclusion Survey Review (http://www.fhwa.dot.gov/map21/reports/sec1318report.cfm). The FHWA evaluated the results of the CE survey to
determine which requested actions would be appropriate as CEs according
to the criteria for a CE under 40 CFR 1508.4 and 23 CFR 771.117(a). The
FHWA did not pursue requests for new CEs for actions that would
duplicate already existing CEs, requests for new CEs that would not
involve a FHWA action (e.g., projects ineligible for FHWA funding
assistance), requests that would not meet the criteria for a CE under
40 CFR 1508.4 and 23 CFR 771.117(a), or requests for new CEs for
actions that would not have independent utility. The FHWA also
eliminated proposed new CEs that would be covered by a statutorily
mandated CE rulemaking under other MAP-21 provisions (e.g., emergency
actions (section 1315), operational right-of-way actions (section
1316), limited Federal assistance actions (section 1317), and the
revision mandated by section 1318(c) for moving modernization of
highways actions, highway safety actions, and bridge rehabilitation,
reconstruction, or replacement actions from the (d)-list to the (c)-
list)). The FHWA evaluated the remaining actions proposed as CEs to
eliminate those that did not meet the 40 CFR 1508.4 definition and
those that were so broad that they could include actions with
significant environmental effects. The FHWA determined that 13 requests
of a total of 86 were appropriate for consideration. These 13 requests
were grouped into 5 CEs. Four of the five CEs could be substantiated as
new CEs. No additional information was provided during the comment
period to substantiate new CEs.
One professional association asked the Agencies to involve the
regulated community as new CEs are developed. The commenter requested
the Agencies to use stakeholder meetings as a forum to discuss the
creation and implementation of CEs.
The Agencies have involved State DOTs, transit authorities,
metropolitan planning organizations, and other governmental agencies in
the development of the new CEs in this rule. For example, the Agencies'
new CEs created in this final rule are a direct response to the
requests received for new CEs under the section 1318(a) survey process.
The Agencies also relied on the public notification and comment process
required in the rulemaking process, 40 CFR 1507.3, and the CEQ's
guidance ``Establishing, Applying, and Revising Categorical Exclusions
under the National Environmental Policy Act'' (75 FR 75628). The
Agencies will provide outreach and training to their stakeholders such
as State DOTs and transit agencies to ensure the appropriate
implementation of the CEs. The FHWA is not planning to provide training
to the public but FTA will be hosting a public Webinar that focuses on
FTA's portion of the rule.
Environmental Review Process Efficiency
Three State DOTs and one professional association expressed concern
that the NPRM proposed little to help expedite project delivery and did
not fully embrace flexibilities emphasized in MAP-21. Two State DOTs
and one professional association indicated that the proposed rule was
overly prescriptive and could limit States' flexibility. Two transit
agencies and one professional association indicated that the rule will
save time and costs and streamline the environmental review process.
One State DOT and one professional association suggested re-writing the
rule in a manner that is consistent with congressional intent to
streamline process and reduce cost, and remove language that is not
specifically required for compliance with the statute. One professional
association stated that all newly created CEs must be implemented in a
programmatic fashion, with no further agency review. A federally
recognized Tribe indicated that a shortened review period for
evaluation of highway projects may cause tribal governments hardship.
The Agencies have undertaken various initiatives that are
consistent with the mandates in MAP-21 to expedite project delivery and
reduce project costs. These include flexibilities developed through
FHWA's Every Day Counts initiative (http://www.fhwa.dot.gov/everydaycounts), FHWA and State DOTs' revisions and refinements of
programmatic CE (PCE) agreements to process projects qualifying for
CEs, and FTA's creation of its list of CEs (78 FR 8964). The Agencies
also revised their lists of CEs to include new CEs pursuant to MAP-21
Sections 1315 (78 FR 11593), 1316, and 1317 (79 FR 2107), which provide
further flexibility to the environmental review process, expedite
project delivery, and reduce project costs. This rulemaking continues
the Agencies' implementation of the MAP-21 provisions to ensure
efficient and effective planning. The Agencies have relied on their
experience implementing NEPA for surface transportation projects and
their experience in using tools to implement this review process
efficiently (e.g., FHWA is relying on its 25-year experience of using
PCE agreements as a tool to expedite the NEPA review processes (see
FHWA's 1989 PCE Memorandum)). The Agencies determined that the language
adopted in this final rule appropriately balanced the goal of providing
flexibility and expeditious project delivery with the need to satisfy
the Agencies' environmental review requirements and responsibilities.
The Agencies must continue to meet their legal obligations for a
project even if the project qualifies for a CE, which includes the
Agencies' responsibilities to consult with Tribes.
The U.S. Army Corps of Engineers (USACE) noted that Nationwide
Permit 23 (NWP 23)--the Clean Water Act (CWA) section 404 Nationwide
Permit for actions that qualify for CEs approved by the USACE--is an
example of efficient regulatory review consistent with the goals of
MAP-21. The USACE noted that it had previously approved FHWA CEs for
this purpose but has not approved the new FHWA CEs or any of the FTA's
CEs for use with NWP 23. As a result, those FHWA CEs moved from the
(d)-list to the (c)-list would continue to require submittal of a pre-
construction notification. Lastly, USACE noted that if FTA would like
their CEs to be covered under the permit, FTA would need to request
USACE review and receive approval prior to using any of its CEs with
NWP 23.
[[Page 60103]]
The Agencies agree that until the USACE approves the new CEs for
use under NWP 23, the CEs could not be used to meet NWP 23 and a pre-
construction notification would be needed. The FTA understands that its
categorically excluded actions under Sec. 771.118 are not currently
covered under the USACE NWP 23. The FTA has formally requested that
USACE review FTA's CEs in order to utilize NWP 23 and FTA will
communicate with the USACE further concerning the application of NWP 23
to FTA actions.
Other Requirements
One federally recognized Tribe indicated that the exemption from
further review and permit requirements for a project did not eliminate
the need for establishing the area of potential effect for that project
under section 106 of the National Historic Preservation Act (NHPA),
particularly for projects in areas that have not been previously
surveyed. The Tribe indicated that historic preservation requirements
under section 106 of NHPA are considered satisfied if treatment has
been agreed upon in a memorandum of agreement but there was no
provision to ensure that federally recognized tribes are included in
the development of the agreement. The Tribe commented that the new
rulemaking may authorize a State to use State review and approval laws
and procedures in lieu of Federal laws and regulations, which has the
potential to significantly worsen consistency issues.
Requirements under other Federal and State laws and regulations
still apply, such as the CWA, Clean Air Act, NHPA, General Bridge Act
of 1946, and Endangered Species Act (ESA). In the case of projects
affecting historic properties (which includes properties of religious
and cultural significance for Tribes that are listed on or eligible for
the National Register), the Agencies must follow the section 106
procedures outlined in 36 CFR part 800. This includes the initiation of
the section 106 process (identifying the parties such as federally
recognized Tribes), identification of historic properties (including
defining the area of potential effect), evaluation of effects, and
resolution of adverse effects. The final rule does not authorize a
State to use or rely on State environmental review and approval laws in
lieu of the Federal environmental requirements.
The U.S. Department of the Interior (DOI) indicated that it
transfers surplus Federal lands and buildings to State and local
agencies for parks and recreation use in perpetuity, and these
transfers include deeds with perpetual use requirements and perpetual
Federal agency oversight. The DOI expressed concern that with the
rulemaking the States might overlook consultation with DOI in
situations where property at issue was acquired through DOI and the
deed contained perpetual use requirements.
The Agencies emphasize that the rule does not exempt a project that
qualifies for a CE from compliance with all other requirements
applicable to the action. The CE determination does not exempt a State
from consultation requirements with the appropriate Federal land
management agency if the project involves a property that has perpetual
use requirements imposed by the Federal land management agency.
Documentation
Five State DOTs, one regional transportation consortium, one
professional association, one Federal agency, and one public interest
group requested clarification in the final rule of the documentation
necessary to ensure that the criteria for the CEs are satisfied. One
professional association expressed concern that additional
documentation beyond a project description is unnecessary. Two State
DOTs expressed the opinion that some aspects of the NPRM will actually
increase CE analysis and documentation. Two public interest groups
appreciated the Agencies' reassertion that application of the new CEs
must still take into account unusual circumstances. One public interest
group suggested that any reduction in the documentation requirements,
as advocated by a number of the State DOTs, would increase the
potential for inconsistent and erroneous application of the new CEs.
The public interest group urged the Agencies to actively monitor and
audit the use of the CEs for the first few years to evaluate whether
additional guidance is necessary.
The final rule does not prescribe the specific amount of
documentation needed to determine if a project qualifies for a CE or
whether unusual circumstances exist such that additional environmental
studies are needed to determine if the CE classification is proper. It
is important to note that all projects that qualify for CE
determinations require the consideration of unusual circumstances.
Unusual circumstances include substantial controversy on environmental
grounds or significant impacts on properties protected by section 4(f)
of the Department of Transportation Act (23 U.S.C. 138 and 49 U.S.C.
303) or section 106 of the NHPA, or inconsistencies with any Federal,
State, or local law, requirement or administrative determination
relating to the environmental aspects of the action (23 CFR 771.117(b);
23 CFR 771.118(b)). This list of unusual circumstances is not all-
inclusive and the finding that there are unusual circumstances will
depend on the context of the project. For example, the presence of
listed species or critical habitat designated under ESA within the
project area could signal unusual circumstances that require the
Agencies and the applicant to conduct appropriate studies to determine
if the CE classification is proper. In the Federal endangered species,
threatened species or critical habitat context, early coordination with
the appropriate agency (U.S. Fish and Wildlife Service or National
Marine Fisheries Service) and the results of the consultation process
under section 7 of ESA would be critical in the final assessment of
whether the CE classification is proper.
The amount of documentation needed for a project depends on the
context in which the project takes place. Some actions may carry little
risk of triggering unusual circumstances such that there is no
practical need for or benefit from obtaining and preparing
documentation other than the project's description. Other actions may
have the potential to raise unusual circumstances or may raise
questions about a potential CE determination due to their more
environmentally invasive nature and would, therefore, warrant
sufficient documentation (like information on studies, analyses, or
surveys conducted) to prove that the CE classification is appropriate.
The Agencies' regulations establish a presumption that the types of
actions that qualify for a (c)-list CE typically do not require much
more than the project description to make a determination that the CE
covers the proposed project and that there are no unusual circumstances
that require additional environmental studies to determine if the CE
determination is proper. The presumption for actions that qualify for
(d)-list CEs is that they require additional information to make an
appropriate CE determination because they are types of actions that are
more environmentally invasive and have a higher potential to trigger
one or more unusual circumstances.
In section 1318(c) of MAP-21, Congress required the Agencies treat
actions that the Agencies have determined have a higher potential of
triggering unusual circumstances as actions that do not have that
higher potential to the extent that such movement complies with the
criteria for a CE under 40 CFR 1508.4. The final
[[Page 60104]]
rule reflects the Agencies' reconciliation of this requirement with
their experience and the CEQ regulations. Specifically for FHWA, this
reconciliation resulted in the creation of constraints that allow a
subgroup of those actions to be treated as having a reduced risk of
triggering unusual circumstances or challenges to the determination.
Documentation and any review considerations would need to demonstrate
that the constraints for the use of the CE (i.e., those in paragraph
(e)) have been met. Documentation may consist of checklists or other
simplified reviews that address how the project meets constraints
listed in Sec. 771.117(e).
The Agencies received an anonymous comment that suggested CEs
should be made available to the public and CEQ if they contain
mitigation measures or if there are unresolved issues. The anonymous
commenter, cited a court case (California v. Norton, 311 F.3d 1162,
1176 (9th Cir. 2002)) that stated that it was ``difficult to determine
if the application of an exclusion is arbitrary and capricious where
there is no contemporaneous documentation to show that the agency
considered the environmental consequences of its action and decided to
apply a CE to the facts of a particular decision.'' The anonymous
commenter also noted that the Agencies' regulations do not provide
recommended courses of action, whether advanced as a categorical
exclusion or a categorical exclusion created through imposition of a
mitigation measure, for any proposal that involves unresolved conflicts
concerning alternative uses of available resources (42 U.S.C.
4332(2)(E)).
The Agencies typically do not post CEs publicly as they issue a
very large number each year and the process is designed to be
expeditious and simple. In accordance with the CEQ NEPA implementing
regulations, a categorical exclusion is a ``category of actions which
do not individually or cumulatively have a significant effect on the
human environment and which have been found to have no such effect in
procedures adopted by a Federal agency . . .'' (emphasis added) (40 CFR
1508.4). The Agencies generally have to demonstrate that any proposed
CE changes are supported by past Agency experience and do not result in
significant environmental impacts; this is done by examining past
environmental documents and practices. Actions that can be
categorically excluded tend to be straightforward and supported by past
Agency actions, so posting them publicly is not deemed appropriate. On
occasion, CEs may be posted publicly, such as when there is high public
interest in the action or there are substantial mitigation measures
included pursuant to other environmental laws. In these cases, the FHWA
Division Office or FTA Regional Office determines whether to post the
CE, in coordination with the project sponsor/applicant. In addition,
the Agencies may engage in public involvement for certain CEs if it is
determined that it would be appropriate or needed for compliance with
requirements other than NEPA. In response to the comment that the
Agencies' regulations do not provide a recommended course of action
when there are unresolved issues concerning alternative uses of
available resources, the Agencies believe that the process for
considering unusual circumstances would take these into account and
provide opportunities to address them as needed. As noted above, and in
Sec. Sec. 771.117(b) and 771. 118(b), potential issues are addressed
through the consideration of unusual circumstances, and in the cases of
FHWA CEs a detailed project-by-project review, which involve conducting
studies to determine whether a CE is appropriate.
The FTA received a comment that requested clarification on the
documentation requirements for Sec. 771.118(c) CEs and Sec.
771.118(d) CEs. The commenter further suggested that the following
language from the preamble of the NRPM be included in the regulatory
text of the final rule: ``The project description [for a (c)-list CE]
typically contains all of the information necessary to determine if the
action fits the description of the CE and that no unusual circumstances
exist that would require further environmental studies.''
The FTA does not believe clarifying documentation requirements for
the (c)-list CEs (Sec. 771.118(c)) versus the (d)-list examples (Sec.
771.118(d)) in the regulatory text is necessary because it is more
appropriate to provide clarity in FTA's ``Guidance for Implementation
of FTA's Categorical Exclusions'' (23 CFR 771.118). In general, grant
applicants should include sufficient information for FTA to make a CE
determination. Generally, a description of the project in the grant
application, as well as any maps or figures typically included with the
application or as requested by the FTA Regional Office is sufficient
for FTA. Submission of this information through the FTA grant
application process or through other means does not mean an action that
otherwise meets the conditions for a CE under Sec. 771.118(c) needs to
be converted to a Sec. 771.118(d) action. Given the nature of the CEs
listed under Sec. 771.118(c), documentation demonstrating compliance
with environmental requirements other than NEPA, such as section 106 of
the NHPA, or section 7 of ESA, may be necessary for the processing of
the grant. That supporting documentation can be included in FTA's grant
management system or kept in the FTA Regional Office's project files,
and applicants should consult with their FTA Regional Office to
determine which is preferred. Other applicable environmental
requirements must be met regardless of the applicability of the CE
under NEPA, but compliance with and documentation of other
environmental requirements do not necessarily elevate an action that
otherwise is categorically excluded under Sec. 771.118(c) to Sec.
771.118(d).
Section 771.118(d), which is an open-ended categorical exclusion
authority, lists example actions and requires documentation to verify
the application of a CE is appropriate (i.e., the action meets the
criteria established in Sec. 771.118(a) and (b)).
Outreach for New Rule
Two professional associations recommended FHWA develop centralized
training for CE determinations and processing or promote the new CEs
that are now available. One of the professional associations suggested
FHWA develop a centralized data base for guidance and frequently asked
questions (FAQ) to increase consistency in the application of these new
rules. The commenter urged that the new CEs be implemented in a uniform
manner, without differences among offices. The commenter also opposed
the issuance of regional guidance. One federally recognized Tribe
commented that the new rulemaking has the potential to significantly
worsen consistency issues. The FTA received three comments that
provided suggestions how to best engage in outreach and communicate
with the public on the new rule. The comments specifically suggested
training for Federal staff and State DOTs and a centralized resource
that includes guidance and FAQs.
The Agencies provide consistency through national training and
guidance. The Agencies support the National Highway Institute and the
National Transit Institute, which conduct NEPA courses across the
nation for employees of the Agencies, State DOTs, transit agencies,
consultants, and other Federal, State, and local entities involved in
transportation NEPA processes. The Agencies and their training
institute partners update the NEPA-related courses to address new
regulations,
[[Page 60105]]
policy, and guidance, including those related to CEs, as needed. The
Agencies also have guidance on their NEPA processes, including CEs and
ensure that training is consistent with the latest procedures and
guidance. The Agencies will provide information on the availability of
the new CEs to their environmental and field staff. To keep the public
informed, FTA will update its ``Guidance for Implementation of FTA's
Categorical Exclusions'' (23 CFR 771.118) to reflect the new CEs and
post it on FTA's public Web site (www.fta.dot.gov /12347_15129.html).
The FTA also plans to hold a public Webinar to provide additional
guidance on the CE changes. The FHWA will provide information about
these CEs through its Division Offices, Resource Centers, and the
Office of Project Development and Environmental Review, as necessary.
Agency Procedures
The Agencies received an anonymous comment suggesting that because
the FHWA and FTA have their own missions, programs, and unique
experiences, each agency should have its own separate NEPA procedures,
not limited to just the CEs.
The Agencies are more similar than they are dissimilar with respect
to the environmental review process and are therefore not pursuing
separate procedures at this time. The Agencies have, however, separated
their procedures where appropriate due to their individual programs.
For example, each Agency has separate public involvement procedures
identified in Sec. 771.111 based on each Agency's experience.
Section 771.117(c)
Six State DOTs and one professional association asked FHWA to add
or adopt the FTA CEs for bridge removal and for preventative
maintenance because those CEs would be beneficial to provide coverage
for bridge removal projects in situations where the bridge replacement
CE does not apply. Four of the State DOTs and the professional
association suggested that bridge removal activities do not depend on
whether they are being carried out as part of a highway project or a
transit project. Four State DOTs and one professional association said
that it would be beneficial to provide a CE specifically for
preventative maintenance activities in culverts and channels because it
would eliminate uncertainty about whether these types of activities are
covered by other CEs. One State DOT expressed concern with a FHWA
bridge removal CE due to the amount of impacts that could occur in a
typically sensitive habitat area. This same commenter asked whether a
road realignment would be covered under the bridge removal CE if the
removal requires a road realignment to the new bridge or whether the
bridge construction CE would cover this action. One State DOT indicated
that it has a PCE agreement that identifies bridge removal as a CE
action.
The FHWA carefully considered whether to propose new CEs for bridge
removal and for preventative maintenance activities and decided against
it at this time. The FHWA was not able to identify projects that were
limited to the act of removing the bridge with no additional action
being taken (e.g., construction of a new water crossing). One possible
scenario could be the removal of a bridge for safety purposes, but this
action would qualify for the new CE in paragraph (c)(27) (highway
safety or traffic operation improvements) if the constraints can be
met, or the CE under paragraph (d)(13) if the constraints cannot be
met.
The FHWA does not believe that a preventative maintenance CE is
needed at this time. In FHWA's experience preventative maintenance
actions typically take place within the operational right-of-way and
would qualify for the recently created CE under existing paragraph
(c)(22) (79 FR 2107).
Two State DOTs, one transit agency, and one professional
association urged FHWA to move expeditiously to adopt a CE that
specifically covers early right-of-way acquisitions under 23 U.S.C.
108(d), in order to clarify that these types of activities, like
hardship and protective acquisitions (23 CFR 771.117(d)(12)), are
covered by a CE. The professional association commented that the mere
acquisition of property does not impact the environment.
The FHWA elected not to propose the requested CE because the Agency
has not completed procedures to implement the amendments to 23 U.S.C.
108 introduced by section 1302 of MAP-21. Early acquisition projects
for hardship and protective purposes that meet the statutory conditions
in 23 U.S.C. 108(d) may be processed as CEs under Sec. 771.117(d)(12),
so long as no unusual circumstances exist that would lead FHWA to
require the preparation of an EA or EIS. Early acquisition projects,
depending on total estimated cost, also may meet the conditions
specified by the CE for actions receiving limited Federal assistance in
Sec. 771.117(c)(23).
Sections 771.117(c)(24) and 771.118(c)(16)
Three State DOTs, one transit agency, one professional association,
and one public interest group supported the addition of the new CE in
Sec. 771.117(c)(24) for geotechnical studies and investigations for
preliminary design. Three State DOTs and one professional association
commented that this new CE could cause confusion by implying that these
activities would trigger NEPA when there is no Federal action involved.
Four State DOTs questioned the need for the CE because it implies that
two NEPA approvals are needed (one for the preliminary investigation
and one for the project itself) increasing documentation requirements
and requiring reviewers to engage in environmental review for
activities typically associated with the review itself. Some of the
comments also applied to the FTA CE proposed for Sec. 771.118(c)(16).
The Agencies' intent is to create new CEs for geotechnical and
other investigations for preliminary design that involve ground
disturbance. This can occur, for example, when these investigations or
studies are undertaken to determine the suitability of a location for a
project but the project itself is not ripe for analysis. The CEs apply
when there is a Federal action involved, such as when FHWA undertakes
the investigations (Federal Lands Highway programs) or when Federal-aid
is used for these preliminary study actions. It is not intended to
federalize actions taken by the applicants in furtherance of their
applications without the use of Federal funds (see 40 CFR 1506.1(d)
stating that the procedural requirements in NEPA are not intended to
preclude the development by applicants of plans, designs, or
performance of other work necessary to support an application for
Federal, State, or local permits or assistance).
Two State DOTs asked for clarification on the breadth of the new
CEs in Sec. Sec. 771.117(c)(24) and 771.118(c)(16). One of the State
DOTs requested the inclusion of paleontological studies as one of the
activities covered by the CEs. Another State DOT asked the Agencies to
limit the use of the CEs to stand-alone surveys that involve ground
disturbing activities only or specify that the CEs are not needed if
the area has no previously identified archeological resources. The
State DOT also requested the Agencies to establish a scale to the CEs
so that they apply for more than a few hand-dug shovel probes.
[[Page 60106]]
The CEs cover geotechnical and other investigations for preliminary
design that involve ground disturbance. The actions listed in the NPRM
for these CEs were examples and are not an inclusive list.
Paleontological studies would be covered by the CEs. The Agencies
decided not to establish a scale for the CEs' applicability to provide
for maximum flexibility for their use.
Three State DOTs and one professional association requested the
Agencies to allow the use of the CE in Sec. 771.117(c)(24) for all
activities associated with preliminary investigations of a project
instead of requiring the application of the CE for each individual
investigation required for the project.
The Agencies believe that the CE in Sec. 771.117(c)(24), as well
as the CE in Sec. 771.118(c)(16), should be used for all activities
associated with preliminary investigation that involve ground
disturbance when there is a Federal action involved such as when FHWA
undertakes the investigations (Federal Lands Highway programs) or when
Federal-aid is used for these preliminary study actions.
Section 771.117(c)(25)
Three State DOTs, two public interest groups, and one transit
agency expressed support for the new CE in Sec. 771.117(c)(25) for
environmental restoration and pollution abatement actions. One State
DOT indicated that it interprets this CE as covering projects that
exclusively install, repair, or replace culverts designed to allow fish
passage. One State DOT requested the addition of ``overall watershed
management'' to the language of the CE. One Federal agency asked that
the constraint found in Sec. 771.117(e)(3) be applied to this proposed
CE. One State DOT commented that it would gain little value from the CE
because it normally designs projects to minimize and/or mitigate
impacts to waterways and ecosystems.
The new CE in Sec. 771.117(c)(25) is intended to cover actions
that involve returning a habitat, ecosystem, or landscape to a
productive condition that supports natural ecological functions.
Restoration actions serve to re-establish the basic structure and
function associated with natural, productive conditions. This may
include culverts designed for fish passage. The CE in Sec.
771.117(c)(25) also covers both pollution abatement practices and
control measures designed to retrofit existing facilities or minimize
stormwater quality impacts from highway projects and watershed
management actions that fit these groups and are eligible for Federal-
aid highways. The actions listed in the NPRM for this CE were examples
and are not an inclusive list. The FHWA does not believe that the CE
needs a restriction similar to Sec. 771.117(e)(3) because in the
FHWA's experience the typical highway actions associated with this CE
do not result in adverse effects to historic properties, a use of a
section 4(f) property other than a de minimis impact, or a finding that
the action is likely to adversely affect a threatened or endangered
species or critical habitat. The FHWA notes that this CE requires an
evaluation of unusual circumstances, just as for any CE, and this
evaluation would capture situations where an activity that otherwise
qualifies for Sec. 771.117(c)(25) could result in adverse effects to
historic properties or threatened and endangered species or critical
habitat, or the use of section 4(f) properties that are not de minimis.
Section 771.117(c)(26)
Three State DOTs and one professional association suggested that
the CE in Sec. 771.117(c)(26) be divided into two parts: one for
highway resurfacing, restoration, rehabilitation, and reconstruction
(4R) projects without the constraints applied, and the other for all
other projects with constraints applied. The commenters indicated that
4R projects often have no environmental impacts or have de minimis
impacts because the projects do not expand the footprint of the travel
surface. Two public interest groups opposed the shift of this CE from
the (d)-list to the (c)-list even with the constraints proposed
because: (1) This CE requires a case-by-case analysis to take into
account the surrounding environment and particular context; (2) the
constraints miss other environmental resources; and (3) adding more
constraints would confuse the purpose of the (c)-list. Another public
interest group urged the DOT to conclude that the wholesale transfer is
simply not consistent with CEQ regulations at 40 CFR 1508.4. One State
DOT suggested that Sec. 771.117(c)(26) actions should accommodate
adding capacity to a highway as long as the project disturbance
``widens less than a single lane width.'' Another State DOT asked that
the term ``passing lanes'' be included in Sec. 771.117(c)(26) to
clarify that the construction of intermittent passing lanes is an
activity that FHWA has historically approved as a Sec. 771.117(d)(1)
CE. One State DOT pointed out that the activities most likely to have
the potential for significant impacts are the addition of shoulders and
auxiliary lanes. A public interest group sought clarification on
whether the term reconstruction included adding additional capacity or
whether it simply meant reconstruction of an existing facility. The
commenter recommended that only reconstruction that did not add
capacity be moved to the (c)-list CE list.
The FHWA agrees with the commenters that a wholesale transfer
without qualifications would be inconsistent with 40 CFR 1508.4.
However, FHWA found that, based on its experience, a transfer with
qualifications (i.e., the constraints in paragraph (e)) would be
consistent with 40 CFR 1508.4. (See NPRM preamble, 47 FR 57587, 57590-
91). The FHWA's proposed approach to moving the first three actions on
the (d)-list to the (c)-list preserves the original (d)-listed CE
actions through Sec. 771.117(d)(13) and acknowledges that the actions
in Sec. 771.117(c)(26), (27), and (28) are identical except that those
actions processed under Sec. 771.117(d)(13) do not meet the
constraints in Sec. 771.117(e). The FHWA believes this approach meets
the statutory requirements for the move and will result in greater
consistency in application and fewer errors than further dividing the
actions. Highway modernization actions, Sec. 771.117(c)(26), would not
include actions that add capacity because in FHWA's experience such
actions require a review of the context in which the project takes
place, which means a detailed project-by-project review. The addition
of auxiliary lanes such as climbing, turning, passing lanes, and other
purposes supplementary to through-traffic movement (see definition in
http://www.ops.fhwa.dot.gov/freewaymgmt/hovguidance/glossary.htm)
rather than adding capacity, serves primarily to increase safety, which
could qualify for CE in Sec. 771.117(c)(27) for safety projects. The
FHWA notes that some actions formerly processed under Sec.
771.117(d)(1), (2), and (3) may also qualify for the recently created
CE in Sec. 771.117(c)(22) (if they are limited to the existing
operational right-of-way), or Sec. 771.117(c)(23) (if the total costs
and Federal investments in the project meet the criteria for that CE).
Section 771.117(c)(27)
Two public interest groups opposed the shift of the new CE in Sec.
771.117(c)(27) for highway safety projects from the (d)-list to the
(c)-list even with the constraints proposed because (1) the CE requires
a case-by-case analysis to take into account the surrounding
environment and particular context, (2) the constraints miss other
environmental resources, and (3) adding more constraints would confuse
the
[[Page 60107]]
purpose of the (c)-list. Another public interest group urged the
Department of Transportation to conclude that the wholesale transfer is
simply not consistent with CEQ regulations at 40 CFR 1508.4.
The FHWA's proposed approach to moving the first three actions on
the (d)-list to the (c)-list preserves the original (d)-listed actions
in Sec. 771.117(d)(13) and acknowledges that the actions in section
771.117(c)(26), (27), and (28) are identical except that those actions
processed under Sec. 771.117(d)(13) do not meet the constraints in the
new Sec. 771.117(e). The FHWA believes this approach meets the
statutory requirements for the move and will result in greater
consistency in application and fewer errors than further dividing the
actions. The constraints in Sec. 771.117(e) are intended to take into
account considerations with regards to the surrounding environment and
particular context that would necessitate additional documentation and
oversight or approval by FHWA. The FHWA did not intend to cover all
potential scenarios and issues that could raise these concerns, rather
the decision to limit the constraints to those resource areas addressed
was based on FHWA past experience in implementing these types of
projects and the areas of concern that most frequently come up with
these types of projects.
Section 771.117(c)(28)
Two public interest groups opposed the shift of the new CE in Sec.
771.117(c)(28) for bridge rehabilitation, reconstruction, and
replacement activities from the (d)-list to the (c)-list even with the
constraints proposed because: (1) The CE requires a case-by-case
analysis to take into account the surrounding environment and
particular context; (2) the constraints miss other environmental
resources; and (3) adding more constraints would confuse the purpose of
the (c)-list. One public interest group indicated that, in the absence
of adequate constraints or conditions, these projects could include
destruction and replacement of historic bridges, or the construction of
massive new elevated bridge structures for grade-separated railroad
crossings within historic districts. The commenter indicated that
strong safeguards are needed to ensure that these CEs are not applied
when the projects involve potentially significant impacts. The
commenter also suggested that a more refined approach of separating out
the activities that are truly unlikely to cause any sort of significant
impact, such as a bridge rehabilitation and repair projects, and
shifting those to the (c)-list and keeping in the (d)-list the more
destructive projects like those that would require destroying an
existing bridge structure or constructing a new one where none
currently exists. One State DOT requested the addition of a
qualification to cover ``design modification to meet current design
standards.''
The FHWA believes this approach meets the statutory requirements
for the move and will result in greater consistency in application and
fewer errors than further dividing the actions. The constraints in
Sec. 771.117(e) are intended to take into account those considerations
with regards to the surrounding environment and particular context that
experience has shown necessitate additional documentation and oversight
or approval by FHWA. The FHWA did not intend to cover all potential
scenarios and issues that could raise these concerns, rather the
decision to limit the constraints to those resource areas addressed was
based on FHWA past experience in implementing these types of projects
and the areas of concern that most frequently come up with these types
of projects. In addition to these constraints, the CE for bridge-
related actions is subject to an evaluation of unusual circumstances
that would take into account the potential for the action to result in
significant environmental impacts. The FHWA considered the refined
approach of segregating the activities covered in the CEs as suggested
by the public interest group and decided against it because in the
Agency's experience all activities mentioned can be classified as a CE
as long as the constraints in Sec. 771.117(e) are met. Removing and
disposing of a bridge or the construction of a new bridge at a new
location (to replace an old bridge) would not typically result in
significant impacts and there would not be a need for additional
documentation and project-by-project approval by FHWA for the CE
determination if the constraints are met. Finally, the FHWA notes that
a rehabilitation, reconstruction, or replacement of a bridge would take
into account current codes and design standards. However, the FHWA
recognizes there may be situations where the modification of the bridge
to accommodate current codes and design standards could result the
failure to meet a constraint under Sec. 771.117(e). In these
situations other CEs may be available for the project, such as the new
CE in Sec. 771.117(d)(13).
Section 771.117(c)(29)
Two State DOTs, one public interest group, and one transit agency
supported the addition of the new CE in Sec. 771.117(c)(29) (ferry
vessels).
The Agencies will adopt this CE as proposed.
Section 771.117(c)(30)
Two State DOTs, one public interest group, and one transit agency
supported the addition of the new CE in Sec. 771.117(c)(30) for
rehabilitation or reconstruction of ferry facilities. One State DOT
asked that the phrase ``substantial increase in users'' be replaced
with ``substantial increase in that facility's capacity'' as a
constraint for the ferry facilities rehabilitation and reconstruction.
The State DOT indicated that the constraint that facilities ``do not
result in a substantial increase in users'' would be difficult to
predict because of year-to-year fluctuation in ferry users. In the
State DOT's experience it is nearly impossible to predict whether a
particular ferry terminal project will result in an increase in users.
The State DOT indicated that the term ``users'' is imprecise and can be
interpreted in many ways. The commenter suggests using a more precise
phrase, such as ``substantial increase in that facility's capacity.''
The FHWA agrees with the commenter stating that an increase of
users is not as accurate as capacity to apply in the rehabilitation or
reconstruction of existing ferry facilities CE. The intent of this
constraint in applying this CE is to ensure that project impacts
undergo an appropriate level of review and capacity reflects this
distinction better than users. The FHWA considered this comment and
modified the constraint to state: ``does not result in a substantial
increase in the existing facility's capacity.''
Section 771.117(d)
Three State DOTs and one professional association supported the
retention of the three (d)-listed CEs in the proposed rule as possible
documented CE actions to retain flexibility.
The FHWA will retain all of the actions formerly listed in Sec.
771.117(d)(1), (2), and (3) via paragraph (d)(13). This will provide
notice that such actions may be processed as (d)-list CEs if any of the
constraints in Sec. 771.117(e) cannot be met for those actions, and it
is determined with additional documentation that a CE classification is
proper. It is also possible for those actions to be processed under
[[Page 60108]]
Sec. 771.117(c)(22) (if the actions are confined to the existing
operational right-of-way) or Sec. 771.117(c)(23) (if the action meets
the funding conditions specified in that CE).
Section 771.117(e)
Constraints Applicability
Five State DOTs and one professional association commented that the
constraints for the three moved (d)-list CEs were unnecessary and would
preclude the use of CEs for projects with minor impacts. Two State DOTs
and one professional association expressed concern with the constraints
because they reflect a one-size-fits-all approach: all States would be
subject to the same list of constraints, regardless of the unique
circumstances in each State. These same commenters proposed that FHWA
could alternatively issue guidance for determining whether additional
documentation needs to be prepared to assess the potential for
``unusual circumstances.'' This approach would build on the existing
requirement in 23 CFR 771.117(b), which requires ``appropriate
environmental studies to determine if the CE classification is proper''
for any action that ``could involve unusual circumstances.'' Two State
DOT commenters stated that moving the first three actions from the (d)-
list to the (c)-list need not include the six constraints because of
consideration of extraordinary circumstances was sufficient. One public
interest group agreed with the Agencies that an ``unconditional'' move
to the (c)-list was not warranted and that it supported, at the very
least, the six ``constraints'' that were proposed for the move. One
Federal agency supported the Agencies' efforts to condition the move of
the three (d)-list CEs to the (c)-list and indicated that in their
experience these types of projects could have greater than minimal
impacts on aquatic resources.
The FHWA believes the final regulation strikes a reasonable balance
between taking into account the environmental context in which a
project takes place with reducing documentation and promoting
administrative expediency. The list of constraints was derived from a
list originally established in a 1989 FHWA memorandum (FHWA
Memorandum--Categorical Exclusion (CE) Documentation and Approval, Mar.
30, 1989, http://environment.fhwa.dot.gov/projdev/docuceda.asp)
(hereinafter FHWA's 1989 PCE Memorandum) on how to develop PCE
agreements and refined based on the Agency's experience with these
programmatic approaches. The FHWA's experience with State DOTs that use
PCE agreements indicates that these constraints are appropriate for
determining when a CE determination may be processed without project-
by-project review by FHWA. The constraints for Sec. 771.117(c)(26),
(27), and (28) help to focus attention on projects with particular
environmental concerns while speeding the approval of projects with
minor or trivial environmental impacts.
The constraints in Sec. 771.117(e) are different than the unusual
circumstances specified in Sec. 771.117(b). Per Sec. 771.117(b),
``any action which normally would be classified as a CE but could
involve unusual circumstances will require the FHWA, in cooperation
with the applicant, to conduct appropriate environmental studies to
determine if the CE classification is proper.'' This means that when
unusual circumstances may be present, documentation is expected to
demonstrate there are no unusual circumstances that warrant a higher
level of NEPA review even when the project does not require detailed
documentation and Agency review. However, the potential for unusual
circumstances for a project does not automatically trigger an EA or
EIS. The constraints are not another articulation of the unusual
circumstances; rather they are conditions that, if followed, would
eliminate the need for detailed project-by-project review from FHWA.
Failure to meet one or more of the constraints would mean that the
project could not be processed with a (c)-list CE. The action may be
approved as a (d)-list CE after detailed review of the project and
appropriate documentation. However, failure to meet one or more of the
constraints does not mean that the project has unusual circumstances
that warrant the start of an EA or EIS process. The FHWA defined all
the constraints in Sec. 771.117(e) in such a way that it is possible
to assess whether the constraints can be met by considering the
available information about a project's context and location.
Preferably, available information could be assessed through a review of
existing maps and databases without having to conduct field reviews or
studies. For many CE actions, it should be similarly possible to
consider unusual circumstances by reviewing maps and databases, but
some projects may require field review or environmental analysis.
Two public interest groups indicated that the decision to place
conditions on the transfer of the CEs was appropriate but insufficient
to properly protect environmental resources and to fully account for
the nature of the (c)-list. The commenters indicated that the six
constraints provided safeguards for impacts to species, wetlands,
floodplains, historic places, and resources protected by section 4(f),
but not others such as impacts to streams, air quality, non-endangered
or threatened species, and light and noise pollution. The commenters
and one other public interest group urged the DOT to conclude that the
wholesale transfer to the (c)-list CEs from the (d)-list was simply not
consistent with the CEQ regulations (40 CFR 1508.4), and therefore
should be rejected. One of the public interest groups commented that
the transfer of these three categories of actions to the (c)-list with
the proposed six constraints would undoubtedly lead to violations of 40
CFR 1508.4, as projects with significant impacts would be processed as
a CE without any analysis. The commenter also stated that to safeguard
against this concern, additional constraints would need to be placed in
Sec. 771.117(e) to ensure that environmental resources will be
sufficiently protected, but this would confuse the purpose of the (c)-
list, which has in the past been purely a list of activities that do
not require case-by-case review. One State DOT suggested that these
constraints ``encourage minimizing certain environmental impacts''
rather than avoiding detailed project-by-project FHWA review.
The FHWA believes the constraints listed in Sec. 771.117(e) are
appropriate for ensuring consideration of certain impacts occurs given
a project's context and location. The FHWA's experience with the three
(d)-list CE actions is very broad and includes projects that involve
potentially significant effects. The FHWA's experience with State DOTs
that use PCE agreements indicates that these constraints are
appropriate for determining when a CE determination may be processed
without detailed project-by-project review by FHWA. The FHWA disagrees
that the six constraints are insufficient to appropriately consider
project impacts for purposes of (c)-list classification. The
constraints in Sec. 771.117(e) are intended to take into account
considerations with regards to the surrounding environment and
particular context that would otherwise necessitate additional
documentation and detailed project-by-project review by FHWA. The FHWA
did not intend to cover all potential scenarios and issues that could
raise these concerns; the decision to limit the constraints to the
listed resource areas was based on FHWA past experience in implementing
[[Page 60109]]
these types of projects and the areas of concern frequently associated
with these types of projects. Although no FHWA regulatory requirements
apply for controlling light pollution, such impacts would be
considered, if applicable, in the evaluation of unusual circumstances.
For example, artificial illumination of the night sky by a project in a
context where darkness is necessary (such as where there is an
observatory) would trigger a consideration of light pollution as an
unusual circumstance.
Constraints' Purpose
Two State DOTs requested more explanation on the purpose of the
constraints for actions listed in Sec. 771.117(c)(26), (27), and (28).
They asked whether the constraints were motivated to ensure that
regulatory obligations were met (for example, section 404 of the CWA or
section 106 of the NHPA compliance) rather than ensuring that project
classification (significance of impacts) is correct and whether a
project that does not meet the constraints could be processed as a CE,
although it would be subject to a higher level of review. They noted
that as long as all appropriate permits are obtained, and impacts are
not found to be significant, then there is no need for this constraint.
The FHWA list of constraints to actions listed in Sec.
771.117(c)(26), (27), and (28) is meant to distinguish actions that
normally would require a higher level of documentation and detailed
project-by-project review by FHWA through a (d)-list CE compared to
actions that should be processed as (c)-listed CEs. Some of the
constraints exclude projects from a (c)-list CE for FHWA when they
trigger a permit because the information needed for the permit requires
additional environmental studies, documentation, and review. Such
studies, review, and documentation are expected for FHWA (d)-list CEs
to assist in the detailed project-by-project review. The constraints in
Sec. 771.117(e) were based on FHWA past experience in implementing
these types of projects and the areas of concern frequently associated
with these types of projects. Projects that satisfy all constraints may
be processed as (c)-list CEs. If one or more of the constraints cannot
be met, the action could still be processed as a (d)-list CE under
Sec. 771.117(d)(13).
Section 771.117(e)
Two State DOTs and one professional association remarked that some
of the constraints involve subjective determinations (e.g., ``more than
a minor amount of right-of-way'' and ``major traffic disruptions or
substantial environmental impacts''). One State DOT and one
professional association remarked on the level of specificity of the
constraints. Another State DOT suggested that FHWA should establish
standard definitions, such as for a minor amount of right-of-way, for
use by Division Offices and States for greater consistency of
application. In contrast, one professional association recommended
clarifying in the final rule that Division Offices and States may adopt
specific thresholds for determining whether an action meets these
criteria. Adopting specific thresholds, on a State-by-State basis, the
commenter indicates, will help to simplify the process for determining
that the criteria are met.
The list of constraints was derived from a list originally
established in the FHWA's 1989 PCE Memorandum. This list has been
refined by experience over time and in most State DOTs' PCE agreements
with FHWA. The FHWA recognizes for three of the constraints that each
State's unique environmental context should be considered in
determining whether an action meets these criteria. For constraints in
Sec. 771.117(e)(1), (4), and (5), State DOTs and Division Offices may
adopt specific thresholds for determining what is more than a minor
amount of right-of-way (Sec. 771.117(e)(1)), what defines major
traffic disruption or substantial environmental impacts from an
existing road, bridge, or ramp closure or the construction of a
temporary access (Sec. 771.117(e)(4)), and how to distinguish changes
in access control that deserve further evaluation from ones that do not
(Sec. 771.117(e)(5)), as appropriate.
Section 771.117(e)(1) Right-of-way
The FHWA has substituted the term ``non-residential'' for
``commercial'' in this constraint to be consistent with terminology in
the Uniform Relocation Assistance and Real Property Acquisition for
Federal and Federally-assisted Programs regulations (49 CFR part 24).
Any displacement of persons within the meaning of the Uniform Act must
be taken into account in determining whether the action meets the
constraint. The text now reads ``[a]n acquisition of more than a minor
amount of right-of-way or that would result in any residential or non-
residential displacement.''
Section 771.117(e)(2) Permits
One State DOT recommended that flexibility be provided with the
constraint in Sec. 771.117(e)(2) for a situation where a State DOT and
FHWA Division Office enter into an agreement with the U.S. Coast Guard
(USCG) and/or USACE that programmatically merges their respective
permitting processes with actions on the (c)-list. Another State DOT
suggested that the constraint in subparagraph (e)(2) is tied to
regulatory compliance with other laws and would be satisfied
independent of the CE classification and indicates it is unnecessary.
Another State DOT said that forcing a State DOT to come up with
documentation and a review process for each project that requires a CWA
section 404 permit is burdensome and time consuming.
Sufficient information about a project's proposed scope, location,
and context should be available during planning and initial project
scoping to indicate whether an individual section 404 permit by the
USACE or a USCG permit would be needed. It is not necessary to fully
develop information or documentation for such permits to determine
whether this condition is met. An FHWA detailed project-by-project
review is needed if, based on preliminary project information, a CWA
section 404 individual permit is likely going to be required. If
agencies can collaborate to develop programmatic approaches that more
efficiently satisfy the requirements instead of completing individual
permits, such approaches should also satisfy this constraint.
The USACE stated that correlating the use of the three (c)-list CEs
with activities that would generally comply with the terms and
conditions of a nationwide or regional general permit (i.e., paragraph
(e)(2)) would indirectly encourage transportation agencies to minimize
impacts to aquatic resources while protecting the integrity of the CE).
The USACE was supportive of the message that USACE would make the
ultimate determination whether an action complies with the terms and
conditions of a nationwide or regional general permit, as well as the
appropriate NEPA class of action to qualify for NWP 23. The USACE
suggested that the final rule recommend transportation agencies contact
them when conducting re-evaluations or providing supplemental
documentation in support of review under a (d)-list CE to properly
address those issues which triggered an Individual Permit review
process.
The FHWA concurs with the USACE that correlating the use of the CEs
with activities that comply with the terms and conditions of a
nationwide or regional general permit would encourage transportation
agencies to minimize impacts to aquatic resources. The USACE is in the
best position to
[[Page 60110]]
make the final determination that an activity qualifies for a
nationwide or regional general permit. Section 771.129(c) (re-
evaluations) would apply when an action affecting waters of the U.S. is
initially determined to qualify for a CE under Sec. 771.117(c)(26),
(c)(27), or (c)(28) but later is determined not to qualify for
verification under a nationwide or regional general permit. Although
the action may no longer qualify for the (c)-list CEs, it may qualify
for a (d)-list CE (such as a CE under Sec. 771.117(d)(13)). In
engaging in the re-evaluation process under Sec. 771.129(c),
transportation agencies should communicate with the USACE to properly
address those issues which triggered a section 404 Individual Permit
review process.
Section 771.117(e)(3) ESA, Section 106, Section 4(f)
One State DOT suggested providing additional flexibility to satisfy
the constraint in Sec. 771.117(e)(3) by allowing for ``programmatic''
agreements to address section 4(f), Land and Water Conservation Fund
section 6(f), NHPA section 106, and the ESA. Another State DOT
suggested that this constraint is tied to regulatory compliance of
other laws and would be satisfied independently of the CE
classification, making it unnecessary. A Federal agency asked that this
constraint include compliance with the Bald and Golden Eagle Protection
Act (BGEPA) and the Migratory Bird Treaty Act (MBTA).
Section 4(f) programmatic evaluations include an alternatives
analysis to avoid the use of a section 4(f) resource, which
necessitates additional documentation and an FHWA finding, and often
requires a detailed FHWA review. The FHWA has limited experience with
programmatic agreements under section 6(f) of the Land and Water
Conservation Fund Act and as a result, the FHWA decided not to develop
a constraint around that threshold at this time. Programmatic
approaches for section 106 of NHPA and section 7 of ESA may be
considered in the evaluation of the constraints as long as the
programmatic approaches meet the specified constraint thresholds. An
example is when a State DOT relies on an existing section 106
programmatic agreement that establishes conditions to prevent an
undertaking from resulting in adverse effects to historic properties.
The State DOT may not rely on a section 106 programmatic agreement that
establishes treatment measures for adverse effects. Another example
would be reliance on a programmatic approach under section 7 of the ESA
that would allow projects to be determined to ``not likely to adversely
affect'' threatened or endangered species or critical habitat. The FHWA
considered the request to include compliance with other wildlife laws,
such as the BGEPA and MBTA, and decided that consideration of the ESA
was adequate based on past experience with PCE agreements. A factor in
making this determination was that the BGEPA and MBTA do not have
similar review thresholds as ESA (i.e., ``no effect,'' ``may affect/not
likely to adversely affect,'' or ``may affect/likely to adversely
affect''). All other requirements applicable to the activity under
other Federal and State statutes and regulations still apply regardless
of the Sec. 771.117(e) constraints, and must be met before the action
proceeds, regardless of the availability of a CE for the transportation
project under part 771.
Section 771.117(e)(4) Traffic Disruption
One State DOT asked for clarification of the word ``substantial''
in the Sec. 771.117(e)(4) constraint especially as it relates to the
overall improvements that the project would allow and as those impacts
are mitigated during construction (such as providing public information
that would help mitigate traffic disruption during construction). One
State DOT noted that the constraint meant that the action could not be
processed as a CE if road closures or the construction of temporary
access to existing roads would result in major traffic disruptions. The
commenter indicated that this would severely limit the application of
these CEs, especially in heavily urbanized areas where traffic
congestion is usually high and the transportation improvement project
is more than likely needed to relieve existing congestion. The
commenter disagreed that temporary access could result in major traffic
disruptions. The commenter indicated that the construction of temporary
access is typically used to provide temporary relief from traffic
disruptions and are temporary in nature; therefore, it should not be
equated with road closures or considered an exception to the use of a
CE. Another commenter stated that this constraint was unnecessary as
traffic disruption would be considered as part of unusual
circumstances.
In FHWA's experience, temporary road, bridge, detour, or ramp
closures deserve a higher level of scrutiny and detailed project-by-
project review because they are the types of activities that have
merited additional review given their potential to have substantial
adverse impacts. The FHWA sees the value in allowing Division Offices
and State DOTs to adopt specific criteria for the ``substantial''
threshold. The FHWA has revised the constraint to focus on the activity
involved (i.e., the closure or construction) and further change is not
warranted. This constraint would not automatically eliminate the use of
the (d)-list CE.
Section 771.117(e)(5) Access Control
Two State DOTs and one professional association recommended
revising the constraint in Sec. 771.117(e)(5) to be limited to changes
in access control ``that raise major concerns regarding environmental
effects.'' They also asked that the final rule clarify that the
Division Office and State DOTs can adopt specific criteria for
determining if this constraint is met. Two State DOTs asked that the
constraint for changes in access control mirror the language in Sec.
771.117(e)(1) so it would read ``more than minor changes in access
control.'' One State DOT and one professional association suggested
that some access changes were sufficiently ``minor'' (e.g., closing
just one access) to allow a project to be processed as a (c)-list CE.
Some examples include the installation of medians or a C-curb break in
access control for maintenance or emergency access, minimal
alterations, or adjustments to driveways. One State DOT asked that the
constraint be clarified to say the changes in access control would need
to affect traffic patterns for more documentation to be required.
Changing the text of the constraint to ``more than minor changes in
access control'' or ``that raise major concerns regarding environmental
effects'' would put this language at odds with the (d)-list CE for
approvals of changes in access control (Sec. 771.117(d)(7)), which
FHWA is not modifying at this time. The FHWA recognizes that some
changes may raise minor concerns and result in no significant
environmental impacts or no safety and operational performance issues,
while others may raise concerns regarding their environmental effects
and deserve a careful consideration of their safety and operational
performance through further evaluation, but these decisions depend on
the environmental context and regulatory framework of each State. The
FHWA sees the value in allowing FHWA Division Offices and States to
adopt specific criteria for the ``change in access control'' threshold.
In establishing this threshold, State DOTs and FHWA Division Offices
would focus on their experience with changes and access control and the
range of impacts that result from the various changes in access that
may occur in the
[[Page 60111]]
State. The State DOTs and FHWA Division Offices would establish,
through a PCE agreement or other formalized programmatic agreement,
which of those require detailed project-by-project review.
Section 771.117(e)(6) Floodplains and Wild and Scenic Rivers
Two State DOTs asked that the constraint in Sec. 771.117(e)(6)
regarding floodplains and wild and scenic rivers be removed because it
may limit enhancement actions, or that it be revised to allow for some
actions within the floodway. Two other State DOTs recommended revising
this constraint to refer to projects with floodplain encroachment
``that adversely affect the function of the floodplain.'' One State DOT
and one professional association asked that the final rule clarify that
the State DOTs and Division Offices may adopt specific criteria for
determining if this constraint is met. One State DOT suggested the
constraint be limited to a floodplain encroachment that requires a
``Letter of Map Revision'' which they believe is alluded to in the
discussion, but not in the proposed regulatory language. Another State
DOT asked that FHWA consider replacing the text with a restriction
against projects that ``result in an increase in the designated
regulatory floodway, or may result in an increase of more than 1 foot
of surface water elevation in the base floodplain when no regulatory
floodway is designated, or may increase the risk of damage to property
and loss of human life, or may result in modification of a
watercourse.'' One State DOT suggested that the constraint be limited
to ``a significant floodplain encroachment'' because if a simple
auxiliary lane project pushes the roadway shoulder 1 foot into the
floodplain for even just a few feet, the project could not be processed
as a (c)-list CE. One State DOT indicated that floodplain encroachments
and involvement of a wild and scenic river entail separate processing
requirements, regardless of a CE class of action and therefore did not
think this constraint was necessary.
The FHWA believes the Sec. 771.117(e)(6) constraint is necessary
to assess the level of documentation detail necessary for a CE
classification when a project involves a floodplain encroachment or a
wild and scenic river. After considering the suggestions from
commenters on how to revise this constraint, the FHWA decided to retain
the constraint language as proposed in the NPRM. A floodplain
encroachment would trigger consideration of practicable alternatives
under Executive Order 11988 and the FHWA implementing regulations at 23
CFR part 650, subpart A. It also indicates a higher risk of
environmental impacts that deserve careful evaluation and
consideration. This means that additional documentation, analysis, and
detailed review is needed to meet the floodplain management
requirements and, therefore, a (d)-list CE is more appropriate. The
action could proceed as a (c)-list CE if it encroaches on floodplains
but the action is for a functionally dependent use or an action that
facilitates open space use. Functionally dependent uses are actions
that must occur in close proximity to water (e.g., bridges).
Section 771.117(g)
Three State DOTs and one professional association stated the
statute included no rulemaking requirements for PCE agreements. Four
State DOTs indicated that imposing these requirements through
rulemaking was inconsistent with the intent of the statute. The
commenters recommended that FHWA release non-binding guidance,
including a template agreement, rather than issue regulations on PCE
agreements. Two State DOTs objected to the proposal to establish new
requirements for all PCE agreements and the requirement for all
existing agreements to be amended for consistency with the new
requirements. One State DOT said existing agreements should be
``grandfathered'' and thus exempt from any new requirements and
expressed concern that existing PCE agreements may be overturned.
The FHWA considers this rulemaking to be appropriate in light of
the statutory change that allows for State DOTs to enter into
agreements with FHWA to make CE determinations on FHWA's behalf. The
FHWA has taken a careful look at the requirements that were proposed in
the NPRM in light of the comments submitted to determine which were
necessary in the regulatory text and which could be implemented
administratively. The Agency decided that those requirements that were
substantive (i.e., elements that the agreement must have) should be
established through rulemaking and those that were either procedural
(i.e., steps that must be met) or administrative (i.e., how FHWA
processes the agreement internally) could be removed from the
regulatory text and established through other means. As a result, the
Agency decided to retain requirements in subparagraphs (g)(1) (State
DOT's responsibilities), (g)(2) (five year term), (g)(3) (monitoring
requirements), and (g)(4) (stipulations for amendments, termination,
and public availability), but remove from the regulatory text the legal
sufficiency and FHWA Headquarters review in subparagraph (g)(5) of the
NPRM. The FHWA believes that its Headquarters program office and legal
office should engage in review of these agreements, but establishing
this requirement in the regulatory text is unnecessary because it is an
internal process that is better established through internal
administrative protocols.
Although FHWA disagrees with commenters expressing preference for
guidance instead of rulemaking on this subject, the Agency is receptive
to the suggestion of developing guidance including a template agreement
on this topic. The FHWA disagrees with the commenters' proposal to
exempt renewal of existing or certain future agreements from this rule
because this would result in inconsistent development of PCE
agreements. Finally, in an effort to provide more clarity to the
regulatory text the FHWA has deleted the phrase ``[n]otwithstanding
paragraph (d) of this section'' as proposed in the NPRM because it was
unnecessary since the introductory paragraph of 771.117(d) now
contemplates the use of programmatic agreements as an alternate method
for approvals.
Five State DOTs and one professional association expressed concern
that the proposed rule did not allow PCE agreements to include CEs that
were not specifically listed in the regulations. The commenters also
noted that State DOTs should be allowed to approve CEs that are not
listed in FHWA's regulations, as long as those CEs are ``consistent
with'' the criteria in the CEQ regulations.
The FHWA evaluated these comments and determined that new CEs not
specifically listed in the regulations would not be allowed in the PCE
agreements unless they are established in accordance with CEQ
regulations and guidance (40 CFR 1507.3 and 1508.4, and Establishing,
Applying, and Revising Categorical Exclusions under the National
Environmental Policy Act (75 FR 75628, Dec. 6, 2010)). To make this
clear, the FHWA has added additional language in the text of the rule
specifying that this authority is limited to CEs specifically listed in
771.117(c) and the activities identified in (d).
One State DOT compared and contrasted the CE processing
flexibilities for States under a PCE agreement with 23 U.S.C. 326 where
the State has assumed responsibility and liability for FHWA decisions.
The commenter suggested that a 23 U.S.C.
[[Page 60112]]
326 Memorandum of Understanding (MOU) should provide the opportunity
for States to make CE approvals for actions not listed in regulation.
The Agencies considered this comment and found it not to directly
relate to the MAP-21 section 1318 provisions. The provisions of
paragraph (g) in Sec. 771.117 do not apply to the section 326 program.
PCE Workload
One State DOT was concerned that PCE agreement monitoring and
reporting requirements will increase the States' workload and may
result in State DOTs requiring additional staff to ensure PCE
compliance. The proposed oversight and quality control/quality
assurance requirements are similar to those mandated by a CE Assumption
MOU under 23 U.S.C. 326 (State assumption of responsibility for
categorical exclusions). Under that program, the State DOT had to hire
additional staff to successfully assume CE responsibilities. The State
DOT also said it is foreseeable that States will be required to hire
additional staff and revise procedures in order to comply with the
proposed PCE requirements where the intent of MAP-21 was not to add
additional staffing and workload requirements to CE approvals.
The comment expressing concern about the burden to State DOTs tied
to monitoring PCE agreements did not distinguish between monitoring of
PCE agreements or monitoring of MOUs executed pursuant to 23 U.S.C. 326
where a State is responsible and legally liable for the CE
determinations it makes. The commenter's concern is based on its
experience with the monitoring process under a section 326 MOU and not
a PCE agreement. It may have been appropriate for the commenting State
DOT to hire additional staff to assume CE responsibilities because they
were not only making CE determinations, but also were assuming
responsibilities for compliance with all associated environmental laws
and regulations associated with that CE determination. The quality
control and quality assurance requirement in Sec. 771.117(g) for State
DOTs may already be incorporated in existing CE processing procedures.
This monitoring requirement should be comparable to the manner of
monitoring existing PCE agreements.
Two public interest groups and one State DOT suggested that Sec.
771.117(g)(3) be expanded to explain further what ``monitoring'' of PCE
agreements should entail. The State DOT suggested that in the
alternative the provision be removed. One public interest group
requested a clarification of public disclosure requirements of PCE
documents and suggested that citizens be allowed to monitor any PCE
agreement.
The FHWA will retain the requirement for monitoring for all PCE
agreements. The purpose of monitoring comes from FHWA's oversight
obligation of the Federal-aid program to ensure that CE determinations
are appropriate and that State DOTs comply with all environmental
requirements. The approach for conducting monitoring should be
determined between each State DOT and FHWA Division Office. Division
Office staff should determine the frequency and level of detail for
monitoring events as well as the composition of the monitoring team.
This monitoring also should identify best practices and lead to the
implementation of corrective actions based on report findings and
observations. The State DOT and the FHWA Division Office will determine
the extent to which monitoring information will be made available
through posting on the Web.
Section 771.118(a) and (b)
The FTA received two comments that expressed concern over the
potential impacts of the actions included in the new CEs on sensitive
habitats and protected resources.
Sections 771.118(a) and (b) include the requirement for considering
unusual circumstances, which is how the Agencies consider extraordinary
circumstances in accordance with the CEQ regulations. These refer to
circumstances in which a normally excluded action could have a
significant environmental impact and, therefore, requires appropriate
environmental studies to determine if the CE classification is proper.
Examples of unusual circumstances include substantial controversy on
environmental grounds, significant impacts on properties protected by
section 4(f) of the DOT Act or section 106 of the NHPA, or
inconsistencies with any Federal, State, or local law, requirement, or
administrative determination relating to the environmental aspects of
the action (23 CFR 771.118(b)). The unusual circumstances provisions
contained in Sec. 771.118(a) and (b) apply to all existing and newly
proposed CEs, and serve as a safeguard to prevent significant impacts
to sensitive habitats and protection resources, among other concerns.
An example of this practice would be if sizeable swaths of habitat are
impacted for an action, then that unusual circumstance would likely
require FTA and the grant applicant to conduct appropriate
environmental studies under Sec. 771.118(b)(1) to determine whether
the CE classification is proper.
Section 771.118(c)(14)
The FTA received two comments requesting clarification on how Sec.
771.118(c)(14) differs from the existing CEs. Specifically, one comment
requested clarification on the types of repair and replacement work
applicable to this new CE versus those in Sec. 771.118(c)(8)
(maintenance, reconstruction, and rehabilitation of facilities). The
second comment asks whether the necessary realignment of a road
following a bridge removal would be covered under the new CE or another
CE.
The new CE expands upon existing CEs to include permanent bridge
removal and the resulting change to the associated transportation
network. The CE further addresses the potential need to realign the
transportation network connected to the bridge and any activities
associated with the work not included in previously established CEs.
These activities could include in-channel work, pier removal or
reduction, and materials disposal. Section 771.118(c)(8) specifically
focuses on the repair of existing facilities that do not change the
facility's use, while this new CE includes permanent bridge removal
that changes the end use.
The FTA received a comment requesting clarification on the
circumstances where reducing pier height would serve to make in-water
navigation safer when conducting a complete bridge removal.
In some instances, when removing a bridge, it is decided to leave
piers in place, rather than remove them. The considerations in this
decision are varied, but include cost considerations as well as
environmental considerations (e.g., avoidance of exposure in cases of
contaminated sediments and other CWA considerations, as well as cost
considerations). In cases where piers are left in place, they are
reduced in height to be below water level, but above sediment levels,
to allow for water craft to safely traverse over the piers. The
decision to leave piers in place is also based on coordination with
stakeholders, permitting agencies, and project engineers, and depends
on the project context (e.g., location, conditions, etc.).
[[Page 60113]]
Section 771.118(c)(15)
The FTA received three comments recommending the text of the CE be
amended to include ``and drainage pipes'' at the end of the last
sentence. The commenters noted that expanding existing culverts and
existing drainage pipes would likely result in similar impacts, and
since culverts often are used as drainage pipes, the language should be
clarified by including drainage pipes so to avoid confusion and an
unintended distinction.
The FTA agrees with the comment, and will amend Sec.
771.118(c)(15) to read ``Preventative maintenance, including safety
treatments, to culverts and channels within and adjacent to
transportation right-of-way to prevent damage to the transportation
facility and adjoining property, plus any necessary channel work, such
as restoring, replacing, reconstructing, and rehabilitating culverts
and drainage pipes; and, expanding existing culverts and drainage
pipes.'' At times, this preventative maintenance may require expanding
existing culverts or drainage pipes in order to properly manage the
stormwater flow. The FTA reassessed its supporting documentation and
found the addition of expanding existing ``drainage pipes'' is
supported by FTA's record (see ``FTA Section 1318 Substantiation''
document). In practice, culverts and drainage pipes both provide or
maintain stormwater drainage, with culverts typically being larger in
diameter than drainage pipes. Due to their functional similarity and
anticipated similar impacts, as well as the limitation to expanding
only existing culverts or pipes, FTA listed both examples in the CE
language in order to avoid confusion for practitioners, as suggested by
the comments received.
The FTA received a comment that suggested the text of the new CE be
broadened to read ``Preventative maintenance, including safety
treatments, to drainage facilities, including culverts and channels . .
.''
The intent of this CE is to focus on rainwater conveyance methods
that can be useful in preventing future flooding at transit facilities.
The FTA considered the suggestion to include drainage facilities, but
FTA interprets drainage facilities to be a broad term that includes
rainwater conveyance and treatment; therefore, if the CE language
includes ``drainage facilities,'' the CE would cover a broader range of
activities than proposed in the NPRM. Furthermore, FTA re-reviewed the
benchmarking examples in the ``FTA Section 1318 Substantiation''
document, considered past experience and reviewed past EAs and findings
of no significant impact in hopes of being able to support the broader
language. The FTA does not have sufficient substantiation to cover the
broader range of activities and, therefore, is not able to proceed with
the proposed change (i.e., adding ``to drainage facilities,
including'') at this time. If grantees would like to pursue stormwater
management activities unconnected to a broader proposal and outside the
scope of this CE, FTA recommends considering the use of the CEs at
Sec. 771.118(c)(3) or (d).
Section 771.118(c)(16)
The summary of comments on Sec. 771.118(c)(16), and how they are
addressed, is included in the discussion above on the FHWA Sec.
771.117(c)(24) CE.
Rulemaking Analyses and Notices
The Agencies considered all comments received before the close of
business on the comment closing date indicated above, and the comments
are available for examination in the docket (FHWA-2013-0049) at
Regulations.gov. The Agencies also considered comments received after
the comment closing date and filed in the docket prior to this final
rule.
Executive Orders 12866 and 13563 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). The
Agencies determined that this action is not a significant regulatory
action under section 3(f) of Executive Order 12866 nor is it
significant within the meaning of Department of Transportation
regulatory policies and procedures (44 FR 11032). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility. It
is anticipated that the economic impacts of this rulemaking are
minimal. The changes to this rule are requirements mandated by MAP-21
to increase efficiencies in environmental review by making changes in
the Agencies' environmental review procedures.
The activities in this final rule add Sec. 771.117(c)(24),
(c)(25), (c)(26), (c)(27), (c)(28), (c)(29), and (c)(30) and Sec.
771.118(c)(14), (c)(15), (c)(16), (d)(7), and (d)(8), pursuant to
section 1318 of MAP-21, and are inherently limited in their potential
to cause significant environmental impacts because the use of the CEs
is subject to the unusual circumstances provision in 23 CFR 771.117(b)
and 23 CFR 771.118(b), respectively. The CE provisions require
appropriate environmental studies, and may result in the
reclassification of the NEPA evaluation of the project to an EA or EIS,
if the Agencies determine that the proposal involves potentially
significant or significant environmental impacts. The program changes
in this final rule establish criteria for PCE agreements between State
DOTs and FHWA. These agreements further expedite NEPA environmental
review for highway projects and enable projects to move more
expeditiously through the Federal environmental review process. The PCE
changes will reduce the preparation of extraneous environmental
documentation and analysis not needed for compliance with NEPA, and
will ensure that projects are built in an environmentally responsible
manner. The changes contained within this rule will not adversely
affect, in any material way, any sector of the economy. In addition,
these changes will not interfere with any action taken or planned by
another agency, and will not materially alter the budgetary impact of
any entitlements, grants, user fees, or loan programs. Consequently, a
full regulatory evaluation is not required.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), the Agencies must consider whether this final rule would have a
significant economic impact on a substantial number of small entities.
``Small entities'' include small businesses, not for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. The Agencies do not believe this final rule
will have a significant economic impact on entities of any size, and
the Agencies received no comment in response to our request for any
such information in the NPRM. These revisions could expedite
environmental review and thus would be less of an impact on small
business entities than any current impact on small business entities.
Thus, the Agencies determined that this final rule will not have a
significant economic impact on a substantial number of small entities.
[[Page 60114]]
Unfunded Mandates Reform Act of 1995
This final rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This final rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$148.8 million or more in any one year (2 U.S.C. 1532).
Executive Order 13132 (Federalism Assessment)
Executive Order 13132 requires agencies to assure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. The Agencies analyzed this final rule in
accordance with the principles and criteria contained in Executive
Order 13132 and determined that this action will not have a substantial
direct effect on the States, the relationship between the Federal
Government and the States, or the distribution of power and
responsibilities among the various levels of government, and,
therefore, does not have federalism implications. The Agencies also
determined that this action would not preempt any State law or State
regulation or affect the States' ability to discharge traditional State
governmental functions. The NPRM invited State and local governments
with an interest in this rulemaking to comment on the effect that
adoption of specific proposals may have on State or local governments.
No State or local governments provided comments on this issue.
Executive Order 13175 (Tribal Consultation)
Executive Order 13175 requires agencies to assure meaningful and
timely input from Indian tribal government representatives in the
development of rules that ``significantly or uniquely affect'' Indian
communities and that impose ``substantial and direct compliance costs''
on such communities. The Agencies analyzed this action under Executive
Order 13175, and determined that it will not have substantial direct
effects on one or more Indian Tribes; will not impose substantial
direct compliance costs on Indian tribal governments; and will not
preempt tribal law.
The Agencies received one comment in response to their request in
the NPRM for comments from Indian tribal governments on the effect that
adoption of specific proposals might have on Indian communities. One
federally recognized Indian Tribe commented that a tribal summary
impact statement was in order. The Indian tribe indicated that it was
concerned that a shortened review period for evaluation of highway
projects may cause tribal governments hardship. The Indian Tribe also
expressed concerns with exempting the highway projects from other laws
and allowing states to use State reviews and approval laws and
procedures in lieu of Federal laws and regulations.
In their response to the comments, the FHWA reiterated that the
rule does not exempt a project that qualifies for a CE from compliance
with all other requirements applicable to the action. The Agencies
determined that the language adopted in this final rule appropriately
balanced the goal of providing flexibility with the need to satisfy the
Agencies' environmental review requirements and responsibilities. The
Agencies must continue to meet their legal obligations for a project
even if the project qualifies for a CE, which includes the Agencies'
responsibilities to consult with Tribes. The final rule does not
authorize a State to use or rely on State environmental review and
approval laws in lieu of the Federal environmental requirements.
The rule does not preempt tribal law. Projects that qualify for CEs
must meet the compliance requirements under other laws, including
tribal laws if the project will take place within tribal lands. The
rule would not impose substantial direct compliance costs on Indian
tribal governments. The rule affects the environmental review process
of projects that will receive Federal-aid from FHWA or FTA, or that
would require an approval from those Agencies. It does not impose
requirements on Indian tribal governments other than those that are
typical for any other Federal agency grantee. Finally, the rule would
not have substantial direct effects on one or more Indian Tribes. The
final rule does not increase the burden of review more than what is
already expected for these types of projects. Therefore, a tribal
summary impact statement is not required.
Executive Order 13211 (Energy Effects)
The Agencies analyzed this action under Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use,'' dated May 18, 2001. The Agencies
determined that this action is not a significant energy action under
the order because it is not likely to have a significant adverse effect
on the supply, distribution, or use of energy. Therefore, a Statement
of Energy Effects under Executive Order 13211 is not required.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities apply
to these programs and were carried out in the development of this rule.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), no Federal agency shall conduct or sponsor a collection of
information unless in advance the agency has obtained approval by and a
control number from the Office of Management and Budget (OMB), and no
person is required to respond to a collection of information unless it
displays a valid OMB control number. The Agencies determined that this
final rule does not contain collection of information requirements for
the purposes of the PRA.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 12898 (Environmental Justice)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) (77 FR 27534) require DOT agencies to achieve
environmental justice (EJ) as part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects, including interrelated social and
economic effects, of their programs, policies, and activities on
minority populations and low-income populations in the United States.
The DOT Order requires DOT agencies to address compliance with the
Executive Order and the DOT Order in all rulemaking activities. In
addition, both Agencies have issued additional documents relating to
administration of the Executive Order and the DOT Order. On June 14,
2012, the FHWA issued an
[[Page 60115]]
update to its EJ order (FHWA Order 6640.23A, FHWA Actions to Address
Environmental Justice in Minority Populations and Low Income
Populations (available online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm)). The FTA also issued an update to its EJ policy on
July 17, 2012 (FTA Policy Guidance for Federal Transit Recipients
(available online at www.fta.dot.gov/legislation_law/12349_14740.html)).
The Agencies evaluated this final rule under the Executive Order,
the DOT Order, the FHWA Order, and the FTA Circular. The Agencies
determined that designation of the new CEs and establishing procedures
for PCE agreements through this rulemaking will not cause
disproportionately high and adverse human health and environmental
effects on minority or low income populations. This rule simply adds a
provision to the Agencies' NEPA procedures under which they may decide
in the future that a project or program does not require the
preparation of an EA or EIS. The rule itself has no potential for
effects until it is applied to a proposed action requiring approval by
the FHWA or FTA.
At the time the Agencies apply a CE established by this rulemaking,
the Agencies have an independent obligation to conduct an evaluation of
the proposed action under the applicable EJ orders and guidance. The
adoption of this rule does not affect the scope or outcome of that EJ
evaluation nor does the new rule affect the ability of affected
populations to raise any concerns about potential EJ effects at the
time the Agencies consider applying a new CE. Indeed, outreach to
ensure the effective involvement of minority and low income populations
where there is potential for EJ effects is a core aspect of the EJ
orders and guidance. For these reasons, the Agencies also determined
that no further EJ analysis is needed and no mitigation is required in
connection with the designation of the CEs and procedures for PCE
agreements.
Executive Order 13045 (Protection of Children)
The Agencies analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. The Agencies certify that this action will not cause an
environmental risk to health or safety that may disproportionately
affect children.
Executive Order 12630 (Taking of Private Property)
The Agencies analyzed this final rule under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights and determined the rule will not affect a taking of
private property or otherwise have taking implications under Executive
Order 12630.
National Environmental Policy Act
This action will not have any effect on the quality of the human
environment and does not require analysis under NEPA. Agencies are
required to adopt implementing procedures for NEPA that establish
specific criteria for, and identification of, three classes of actions:
those that normally require preparation of an EIS; those that normally
require preparation of an EA; and those that are categorically excluded
from further NEPA review. The CEQ's requirements for establishing
Agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The
CEQ regulations do not direct agencies to prepare a NEPA analysis or
document before establishing Agency procedures (such as this
regulation) that supplement the CEQ NEPA regulations. The CEs are one
part of those agency procedures (40 CFR 1507.3(b)), and therefore
establishing CEs or allowing for programmatic approaches to processing
CEs does not require preparation of a NEPA analysis or document. Agency
NEPA procedures are generally procedural guidance to assist agencies in
the fulfillment of agency responsibilities under NEPA, but are not the
agency's final determination of what level of NEPA analysis is required
for a particular proposed action. The determination that establishing
CEs does not require NEPA analysis and documentation was upheld in
Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73
(S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects
23 CFR Part 771
Environmental protection, Grant programs--transportation, Highways
and roads, Historic preservation, Public lands, Recreation areas,
Reporting and record keeping requirements.
49 CFR Part 622
Environmental impact statements, Grant programs--transportation,
Public transit, Public transportation, Recreation areas, Reporting and
record keeping requirements.
In consideration of the foregoing, the Agencies are amending title
23, Code of Federal Regulations part 771, and title 49, Code of Federal
Regulations part 622, as follows:
Title 23
PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
0
1. The authority citation for part 771 is revised to read as follows:
Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128,
138, 139, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFR Parts 1500-
1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119 Stat. 1144,
sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, sections
1315, 1316, 1317, and 1318.
0
2. Amend Sec. 771.117 by:
0
a. Adding paragraphs (c)(24) through (30);
0
b. Revising paragraph (d) introductory text;
0
c. Removing and reserving paragraphs (d)(1) through (3);
0
d. Adding paragraph (d)(13);
0
e. Redesignating paragraph (e) as paragraph (f);
0
f. Adding new paragraph (e); and
0
d. Adding paragraph (g).
The additions and revisions read as follows:
Sec. 771.117 FHWA categorical exclusions.
* * * * *
(c) * * *
(24) Localized geotechnical and other investigation to provide
information for preliminary design and for environmental analyses and
permitting purposes, such as drilling test bores for soil sampling;
archeological investigations for archeology resources assessment or
similar survey; and wetland surveys.
(25) Environmental restoration and pollution abatement actions to
minimize or mitigate the impacts of any existing transportation
facility (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)) carried out to address water pollution or environmental
degradation.
(26) Modernization of a highway by resurfacing, restoration,
rehabilitation, reconstruction, adding shoulders, or adding auxiliary
lanes (including
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parking, weaving, turning, and climbing lanes), if the action meets the
constraints in paragraph (e) of this section.
(27) Highway safety or traffic operations improvement projects,
including the installation of ramp metering control devices and
lighting, if the project meets the constraints in paragraph (e) of this
section.
(28) Bridge rehabilitation, reconstruction, or replacement or the
construction of grade separation to replace existing at-grade railroad
crossings, if the actions meet the constraints in paragraph (e) of this
section.
(29) Purchase, construction, replacement, or rehabilitation of
ferry vessels (including improvements to ferry vessel safety,
navigation, and security systems) that would not require a change in
the function of the ferry terminals and can be accommodated by existing
facilities or by new facilities which themselves are within a CE.
(30) Rehabilitation or reconstruction of existing ferry facilities
that occupy substantially the same geographic footprint, do not result
in a change in their functional use, and do not result in a substantial
increase in the existing facility's capacity. Example actions include
work on pedestrian and vehicle transfer structures and associated
utilities, buildings, and terminals.
(d) Additional actions which meet the criteria for a CE in the CEQ
regulations (40 CFR 1508.4) and paragraph (a) of this section may be
designated as CEs only after Administration approval unless otherwise
authorized under an executed agreement pursuant to paragraph (g) of
this section. The applicant shall submit documentation which
demonstrates that the specific conditions or criteria for these CEs are
satisfied and that significant environmental effects will not result.
Examples of such actions include but are not limited to:
* * * * *
(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28)
of this section that do not meet the constraints in paragraph (e) of
this section.
(e) Actions described in (c)(26), (c)(27), and (c)(28) of this
section may not be processed as CEs under paragraph (c) if they
involve:
(1) An acquisition of more than a minor amount of right-of-way or
that would result in any residential or non-residential displacements;
(2) An action that needs a bridge permit from the U.S. Coast Guard,
or an action that does not meet the terms and conditions of a U.S. Army
Corps of Engineers nationwide or general permit under section 404 of
the Clean Water Act and/or section 10 of the Rivers and Harbors Act of
1899;
(3) A finding of ``adverse effect'' to historic properties under
the National Historic Preservation Act, the use of a resource protected
under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions
resulting in de minimis impacts, or a finding of ``may affect, likely
to adversely affect'' threatened or endangered species or critical
habitat under the Endangered Species Act;
(4) Construction of temporary access, or the closure of existing
road, bridge, or ramps, that would result in major traffic disruptions;
(5) Changes in access control;
(6) A floodplain encroachment other than functionally dependent
uses (e.g., bridges, wetlands) or actions that facilitate open space
use (e.g., recreational trails, bicycle and pedestrian paths); or
construction activities in, across or adjacent to a river component
designated or proposed for inclusion in the National System of Wild and
Scenic Rivers.
* * * * *
(g) FHWA may enter into programmatic agreements with a State to
allow a State DOT to make a NEPA CE certification or determination and
approval on FHWA's behalf, for CEs specifically listed in paragraphs
(c) and (d) of this section. Such agreements must be subject to the
following conditions:
(1) The agreement must set forth the State DOT's responsibilities
for making CE determinations, documenting the determinations, and
achieving acceptable quality control and quality assurance;
(2) The agreement may not have a term of more than five years, but
may be renewed;
(3) The agreement must provide for FHWA's monitoring of the State
DOT's compliance with the terms of the agreement and for the State
DOT's execution of any needed corrective action. FHWA must take into
account the State DOT's performance when considering renewal of the
programmatic CE agreement; and
(4) The agreement must include stipulations for amendment,
termination, and public availability of the agreement once it has been
executed.
0
3. Amend Sec. 771.118 by adding paragraphs (c)(14) through (16) and
adding paragraphs (d)(7) and (8) to read as follows:
Sec. 771.118 FTA categorical exclusions.
* * * * *
(c) * * *
(14) Bridge removal and bridge removal related activities, such as
in-channel work, disposal of materials and debris in accordance with
applicable regulations, and transportation facility realignment.
(15) Preventative maintenance, including safety treatments, to
culverts and channels within and adjacent to transportation right-of-
way to prevent damage to the transportation facility and adjoining
property, plus any necessary channel work, such as restoring,
replacing, reconstructing, and rehabilitating culverts and drainage
pipes; and, expanding existing culverts and drainage pipes.
(16) Localized geotechnical and other investigations to provide
information for preliminary design and for environmental analyses and
permitting purposes, such as drilling test bores for soil sampling;
archeological investigations for archeology resources assessment or
similar survey; and wetland surveys.
(d) * * *
(7) Minor transportation facility realignment for rail safety
reasons, such as improving vertical and horizontal alignment of
railroad crossings, and improving sight distance at railroad crossings.
(8) Modernization or minor expansions of transit structures and
facilities outside existing right-of-way, such as bridges, stations, or
rail yards.
* * * * *
Title 49
PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
0
4. The authority citation for part 622 is revised to read as follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323(q);
23 U.S.C. 139 and 326; Pub. L. 109-59, 119 Stat. 1144, sections 6002
and 6010; 40 CFR parts 1500-1508; 49 CFR 1.81; and Pub. L. 112-141,
126 Stat. 405, sections 1315, 1316, 1317, and 1318.
Issued on: September 26, 2014.
Gregory G. Nadeau,
Acting Administrator, Federal Highway Administration.
Therese W. McMillan,
Acting Administrator, Federal Transit Administration.
[FR Doc. 2014-23660 Filed 10-3-14; 8:45 am]
BILLING CODE 4910-22-P