Environmental Impact and Related Procedures--Programmatic Agreements and Additional Categorical Exclusions |
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Victor M. Mendez
National Highway Traffic Safety Administration
Peter Rogoff
Federal Transit Administration
September 19, 2013
[Federal Register Volume 78, Number 182 (Thursday, September 19, 2013)]
[Proposed Rules]
[Pages 57587-57602]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22675]
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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, Federal Transit Administration,
DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This notice of proposed rulemaking (NPRM) provides interested
parties with the opportunity to comment on proposed changes to the
Federal Highway Administration (FHWA) and Federal Transit
Administration (FTA) joint procedures that implement the National
Environmental Policy Act (NEPA). The revisions are prompted by
enactment of the Moving Ahead for Progress in the 21st Century Act
(MAP-21). This NPRM proposes to: add new categorical exclusions (CE)
for FHWA and FTA, allow a State department of transportation (State
DOT) to process certain CEs without FHWA's detailed project-by-project
review and approval (as long as the action meets specified
constraints), and allow Programmatic Agreements between FHWA and States
that would permit States to apply FHWA CEs on FHWA's behalf. The FHWA
and FTA seek comments on the proposals contained in this notice.
DATES: Comments must be received on or before November 18, 2013.
ADDRESSES: To ensure that you do not duplicate your docket submissions,
please submit them by only one of the following means:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor
Room W12-140, Washington, DC 20590-0001;
Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Ave. SE., between 9 a.m. and 5 p.m., e.t., Monday
through Friday, except Federal holidays. The telephone number is (202)
366-9329;
[[Page 57588]]
Instructions: You must include the agency name and docket
number or the Regulatory Identification Number (RIN) for the rulemaking
at the beginning of your comments. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.
FOR FURTHER INFORMATION CONTACT: For the Federal Highway
Administration: 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, 1200 New Jersey Ave. SE., Washington, DC 20590-0001.
For the Federal Transit Administration: Megan Blum, Office of Planning
and Environment (TPE), (202) 366-0463, or Dana Nifosi, Office of Chief
Counsel (TCC), (202) 366-4011. 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). The MAP-21 contains new requirements that the
Secretary of Transportation must meet in complying with NEPA (42 U.S.C.
4321 et seq.), as well as several requirements for rulemaking to change
23 CFR part 771, which contains the regulations that implement NEPA for
FHWA and FTA. Part 771 includes authority to categorically exclude
certain categories of actions from the NEPA requirements to prepare an
environmental assessment (EA) or environmental impact statement (EIS).
Sections 771.117(c) and 771.118(c) establish specific lists of
categories of actions that FHWA and FTA have determined are normally
categorically excluded from further NEPA review. Sections 771.117(d)
and 771.118(d) provide FHWA and FTA with the authority to categorically
exclude any action that meets the criteria of a CE in the Council on
Environmental Quality (CEQ) regulations (40 CFR 1508.4) and provides
examples of categories of actions that can be approved under that
authority. The FHWA or FTA approval of a CE under section 771.117(d) or
771.118(d) is based on a review of the project's documentation
demonstrating that the specific conditions or criteria for the CE are
satisfied and that there will not be significant environmental effects.
Section 1318 of MAP-21 requires the Secretary 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 an 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)-(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.
Since MAP-21's enactment, FTA has established 23 CFR 771.118, a new
section that contains FTA's CEs. Due to the timing of the publication
of the final rule and MAP-21's enactment, FTA is applying section 1318
to 23 CFR 771.118. The FHWA and FTA, hereafter referred to as ``the
Agencies,'' are carrying out this rulemaking on behalf of the
Secretary.
I. The Agencies' NEPA Procedures
The CEQ regulations, 40 CFR parts 1500-1508, establish procedural
requirements for complying with NEPA and instruct Federal agencies to
establish CEs in their NEPA implementing procedures for those
categories of actions that do not individually or cumulatively have a
significant effect on the human environment and therefore do not
require the preparation of an EA or an EIS. The Federal agency
procedures must provide for extraordinary circumstances in which a
normally excluded action may have a significant environmental effect
(40 CFR 1508.4).
Joint procedures at 23 CFR part 771 (Agencies' NEPA Procedures)
describe how the Agencies comply with NEPA and the CEQ regulations.
Specifically, sections 771.117 and 771.118 contain the CEs that the
Agencies have established, including the requirement for considering
unusual circumstances, which is how the Agencies consider extraordinary
circumstances in accordance with the CEQ NEPA regulations. Examples of
the Agencies' unusual circumstances include: substantial controversy on
environmental grounds, significant impacts on properties protected by
section 4(f) of the U.S. Department of Transportation (DOT) Act (23
U.S.C. 138/49 U.S.C. 303) or section 106 of the National Historic
Preservation Act (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)).
The Agencies first issued their NEPA Procedures in 1980 (45 FR
71968, Oct. 30, 1980). Although the rules have been the subject of
subsequent revisions, the Agencies issued the 1987 revisions (52 FR
3264, Aug. 28, 1987) as part of a departmentwide effort to streamline
rules within the Department. The 1987 revisions are important to this
NPRM because they resulted in the split of the Agencies' CEs into two
groups.
The first group, referred to as ``(c)-list CEs,'' lists those
actions that almost never involve significant impacts and, therefore,
do not require detailed review by the Agencies. The project description
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 second group, referred to as ``(d)-list CEs,'' includes any
action that meets the criteria for CEs in 40 CFR 1508.4 and sections
771.117(a) for FHWA actions or 771.118(a) for FTA actions. The
Agencies' criteria are actions that do not normally: induce significant
impacts to planned growth or land use for the area; require the
relocation of significant numbers of people; have a significant impact
on any natural, cultural, recreational, historic, or other resource;
involve significant air, noise, or water quality impacts; have
significant impacts on travel patterns; or otherwise, either
individually or cumulatively, have any significant environmental
impacts. Applicants for FHWA or FTA assistance must submit
documentation for approval that demonstrates that the specific
conditions or criteria for the CE are satisfied and that the action
will not result in significant environmental effects (23 CFR
771.117(d); 23 CFR 771.118(d)). The Agencies use a list of examples to
illustrate the types of actions covered by the (d)-list criteria. The
Agencies take into account context and site location to determine if an
action meets the CE criteria or would warrant further NEPA analyses.
The Agencies took this approach instead of developing a comprehensive
list ``so that specific actions not previously listed by an agency
could be considered for CE status on a case-by-case basis'' (52 FR
32651, Aug. 28, 1987). In the Agencies' experience, the availability of
the (d)-list CE authority expedites administrative and NEPA processing
by encouraging grant applicants to design proposed projects so that
significant impacts will not normally occur.
Regardless of classification as a (c)-list or (d)-list CE, actions
qualifying for CEs
[[Page 57589]]
must also comply with NEPA requirements relating to connected actions
and segmentation (see, e.g., 40 CFR 1508.25, and 23 CFR 771.111(f)).
The action must have independent utility and connect logical termini
when applicable (i.e., linear facilities). In addition, even though an
action may qualify for a CE, thereby satisfying NEPA requirements, all
other requirements applicable to the activity under other Federal and
State laws and regulations still apply, such as the CWA, CAA, NHPA,
General Bridge Act of 1946, and ESA. Some of these requirements may
require the collection and analysis of information, or coordination and
consultation efforts that are independent of the Agencies' NEPA CE
determination. Also, some of these requirements may involve actions by
other Federal agencies (e.g., approvals or issuance of permits) that
could trigger a different level of NEPA analysis for those Federal
agencies. These requirements must be met before the action begins,
regardless of the availability of a CE for the transportation project
under 23 CFR part 771.
The CEQ regulations direct Federal agencies to update their NEPA
implementing procedures as necessary, including amending lists of CEs
from time to time to reflect changes in their missions and programs,
and to reflect experience that has been gained since the adoption of
their lists (40 CFR 1507.3(a)). The CEQ's guidance, Establishing,
Applying, and Revising Categorical Exclusions under the National
Environmental Policy Act (75 FR 75628, Dec. 6, 2010) (CEQ CE Guidance),
makes recommendations on reviewing existing lists and establishing new
CEs. Prior to the enactment of MAP-21, the Agencies initiated a
rulemaking to revise the CE list in 23 CFR part 771 in accordance with
the CEQ guidance. The new rule became final on February 7, 2013 (78 FR
8964) and, among other improvements, established 10 new CEs in section
771.118(c) that specifically apply to actions by FTA. The CE provisions
in section 771.117 now specifically apply to actions by FHWA.
II. The Agencies' Joint Rulemaking Approach
The Agencies are issuing this NPRM jointly to facilitate public and
agency comment and to remain consistent with the joint rulemaking
approach taken for previous proposed changes to the list of actions
categorically excluded under 23 CFR part 771 (see, e.g., 78 FR 11593,
Feb. 19, 2013, implementing section 1315 of MAP-21; and 78 FR 13609,
Feb. 28, 2013, proposing a rule to implement sections 1316 and 1317 of
MAP-21). The Agencies collaborated in the preparation of a survey on CE
use in transportation projects pursuant to section 1318(a) of MAP-21.
The survey included a questionnaire that asked State DOTs, transit
authorities, metropolitan planning organizations (MPOs), and other
government agencies to provide information on their use of CEs for
transportation projects and to solicit requests for new CEs.
The Secretary issued the survey on September 5, 2012, and received
117 responses that proposed 269 actions as new CEs. The Agencies
collaboratively reviewed the survey results and made those results
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 Agencies
coordinated to take advantage of their collective experience, to
promote consistency, and to clarify differences between the Agencies
with the development of the proposed CEs contained in this NPRM.
Although this is a joint NPRM, the Agencies note that the
development of the proposed CEs for each Agency and the approach taken
to implement section 1318 of MAP-21 is based on each Agency's
particular mission and programs, unique experiences, and lists of CEs.
The FTA recently completed a retrospective review of its CEs, and the
result is already reflected in section 771.118. In contrast, the CE
list in section 771.117 has not undergone a complete retrospective
analysis since its last major revision in 1987. (The Agencies published
an NPRM proposing major revisions to this regulation on May 25, 2000,
but never issued a final rule.) Therefore, FHWA is taking the
opportunity presented by MAP-21 to engage in a retrospective review of
its list of CEs as required by 40 CFR 1507.3(a) (``Agencies shall
continue to review their policies and procedures and in consultation
with [CEQ] to revise them as necessary to ensure full compliance with
the purposes and provisions of [NEPA]''), and re-emphasized by the
recent CEQ CE Guidance.
The FHWA's development and implementation of programmatic
agreements for the use of CEs (also known as PCE agreements) is also
distinct from FTA's program, which lacks the statutory authority to
allow for PCE agreements. The PCE agreements enable FHWA Division
Offices and State DOTs to develop protocols that allow State DOTs to
certify to FHWA whether a project qualifies for a CE. (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''). Section 1318(d) of MAP-21
encourages the use of PCE agreements. The FHWA has drawn from its
experience with these agreements to comply with section 1318 of MAP-21.
III. FHWA's Approach to MAP-21's Section 1318 Requirements
The FHWA is issuing this proposal to meet the rulemaking
requirements in section 1318(b) and 1318(c). The FHWA is also utilizing
this NPRM as an opportunity to propose general criteria for all PCE
agreements in furtherance of section 1318(d). As a result, this NPRM
contains the following proposed changes with respect to 23 CFR 771.117:
(1) The addition of four new CEs derived from the survey and requests
for new CEs as mandated by section 1318(a); (2) moving three FHWA (d)-
list CE examples to FHWA's (c)-list (to the extent that such movement
complies with the criteria for a CE under 40 CFR 1508.4) as required
under section 1318(b); and (3) the addition of general criteria that
would apply to all FHWA PCE agreements. Sections III.A., III.B., and
III.C. provide background for each of these changes, while the FHWA
Section-by-Section Discussion of the Proposal provides a more detailed
discussion of the proposals.
A. CE Survey and New CEs
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
[[Page 57590]]
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 categorized the actions proposed as CEs into 22 groups.
The groups identified were: (1) Safety and operations; (2) maintenance
and preservation actions; (3) bridges; (4) activities within existing
right-of-way or urban areas; (5) railroads; (6) transit; (7)
rehabilitation and reconstruction; (8) environmental mitigation; (9)
bicycle and pedestrian facilities; (10) utilities, lighting, and
signage; (11) actions consistent with existing plans or land use and
those approved by other agencies; (12) culverts and waterways; (13)
acquisitions; (14) excess right-of-way; (15) activities with limited
Federal involvement/funding; (16) activities under a certain size/cost
threshold; (17) alternative energy; (18) parking; (19) geotechnical
work; (20) aesthetic treatments; (21) ferries; and (22) other.
The FHWA determined that most of the requests for new CEs were for
actions either already covered by the existing list of CEs (81
requests) or for actions that would qualify for CEs associated with
other statutorily mandated MAP-21 CE rulemakings (102 requests). For
example, FHWA received requests to include roundabouts and traffic
circle projects as a new CE. The FHWA considers roundabouts and traffic
circle projects to be a highway safety or traffic operations
improvement projects and would process this type of action as a CE
under paragraph 771.117(d)(2) when the action does not add capacity and
requires only minor amounts of new right-of-way. As discussed below,
FHWA proposes to move this category to paragraph (c).
The FHWA did not pursue 86 requests for the following reasons: 38
requests were for overly broad actions that would include elements that
may result in significant impacts; 16 requests were for actions that
are not subject to NEPA because there is no Federal action; 13 requests
were for actions already covered by the (d)-list which FHWA determined
did not warrant a move to the (c)-list; and 6 requests were for actions
that were inappropriately segmented from a larger action. The FHWA
determined that the remaining 13 requests were appropriate for
consideration. These 13 requests were grouped into 5 CEs. Four of the
CEs are proposed in this NPRM as new CEs for the list in 23 CFR
771.117(c).
The fifth CE, not pursued in this NPRM, would have covered early
acquisition actions (e.g., advanced acquisitions for minor amounts of
abandoned railroad right-of-way and minimal right-of-way). Section 1302
of MAP-21 amended 23 U.S.C. 108 to allow for FHWA-funded early
acquisitions of real property interests prior to completion of the NEPA
review process for the transportation project that could use the real
property interests. The FHWA elected not to propose the requested CE in
this NPRM because FHWA has not completed procedures to implement
section 108. The FHWA notes, however, that similar to acquisition
projects for hardship and protective purposes, early acquisition
projects using Federal funds that meet the statutory conditions in
section 108(d) may be processed as a (d)-listed CE, so long as unusual
circumstances do not exist that would lead FHWA to require the
preparation of an EA or EIS.
B. Moving FHWA (d)-List CEs to the (c)-List
The FHWA also considered MAP-21's requirement to move particular
(d)-list CEs to the (c)-list to the extent that such movement complies
with the criteria for CE under 40 CFR 1508.4. The (d)-list CEs are
those for (1) Modernization of a highway by resurfacing, restoration,
rehabilitation, reconstruction, adding shoulders, or adding auxiliary
lanes (including parking, weaving, turning, and climbing); (2) highway
safety or traffic operations improvement projects, including
installation of ramp metering control devices and lighting; and (3)
bridge rehabilitation, reconstruction, or replacement or construction
of grade separation to replace existing at-grade railroad crossings.
Section 1508.4 of title 40, Code of Federal Regulations, provides
that a ``categorical exclusion means 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 such effect in procedures
adopted by a [F]ederal agency in implementation of these regulations
and for which, therefore, neither an environmental assessment nor an
environmental impact statement is required.'' This CEQ regulatory
definition of a CE does not acknowledge the distinction in part 771
between two types of CEs (i.e., the (c)-list and (d)-list). Therefore,
the particular agency's NEPA procedures are the appropriate place for
establishing any distinctions for the agency's CEs. See CEQ CE
Guidance, 75 FR 75635-75636 (establishing that each Federal agency
should decide--and update its NEPA implementing procedures and guidance
to indicate--whether any of its CEs warrant preparation of additional
documentation).
The FHWA has determined that, for its programs, moving the CE
language from section 771.117(d)(1)-(3) to 771.117(c) is appropriate
and consistent with 40 CFR 1508.4, if: (1) The action normally would
not have significant impacts, and (2) FHWA's experience supports
eliminating FHWA's detailed review process for this select group of
categorical exclusions. In FHWA's experience, actions in section
771.117(c) represent actions that normally do not have significant
impacts. This interpretation is consistent with FHWA's experience with
PCE agreements. Some FHWA PCE agreements eliminate the need for FHWA's
detailed project-by-project review for actions that qualify for a (d)-
list CE, and meet certain conditions that reduce their potential to
cause significant impacts. The intent of this approach is to identify
those actions that currently qualify for (d)-list CEs, but would not
normally have significant impacts and therefore could be placed on the
(c)-list. The interpretation is also consistent with FHWA's practice
since the creation of the (c)-list, as evidenced in the preamble for
the 1987 final rule (52 FR 32651, Aug. 28, 1987). In applying this test
to the particular (d)-list actions identified in MAP-21 section 1318,
FHWA considered recommendations in the CEQ CE Guidance to consider
``limiting or removing activities included in the categorical
exclusion'' and ``placing additional constraints on the categorical
exclusion's applicability'' when appropriate (75 FR 75632, Dec. 6,
2010).
After reviewing its experience with these actions, FHWA has decided
not to propose an unconditional move of the identified (d)-list CEs to
the (c)-list. Many actions that qualify for these (d)-list CEs require
consideration of the surrounding environment in which the action will
occur (such as their setting, site location, and surrounding land use)
and their particular context (e.g., no effect, or minor to moderate
environmental effects). This is typically accomplished through FHWA's
review of project documentation, and the movement from the (d)-list to
the (c)-list is not supported without any limitations. However, FHWA's
experience with PCE agreements indicates that FHWA could move a subset
of these actions--those that meet a proposed a set of constraints
similar to those used in PCE agreements--because the constraints would
limit the
[[Page 57591]]
actions to those that normally would not have significant impacts.
C. The FHWA PCE Agreements
This rulemaking also is intended to address section 1318(d) of MAP-
21, which authorizes FHWA to enter into programmatic agreements. The
FHWA proposes changes to 23 CFR 771 to codify PCE agreements in
regulation and to establish general criteria for all PCE agreements.
Existing PCE agreements will need to be reviewed and amended to conform
to the new criteria proposed in this NPRM. Existing PCE agreements
would continue to operate until revised, but would need to be revised
no later than 5 years after publication of the rule if it becomes
final.
The FHWA established PCE agreements in 1989 as a tool to expedite
the NEPA review processes (see FHWA's 1989 PCE Memorandum). Under these
PCE agreements, FHWA and the State DOT enter into an agreement that
identifies classes of (d)-list CEs that the State DOT may process
without FHWA's detailed project-by-project review and approval as long
as the action meets specified conditions that limit their potential
environmental impacts. These agreements also provide for the processing
of (c)-list CEs by the State DOT. Typically, PCE agreements allow a
State DOT to certify to FHWA that a particular action (or group of
actions) meet the conditions established in the agreement and provide
FHWA an opportunity to agree or reclassify the action before the State
DOT begins the project. The FHWA has promoted these instruments through
its Every Day Counts initiative. See http://www.fhwa.dot.gov/everydaycounts/ for more information about this initiative.
The PCE agreements increase efficiency in the processing of CE
actions under FHWA's existing regulatory framework. The PCE agreements
provide a process where State DOTs can certify to FHWA that a project
qualifies for a CE based on conditions that take into account each
State's unique resources, context, and considerations. The FHWA legally
remains responsible for the final CE determination and remains
responsible for compliance with other environmental review
requirements, such as compliance with section 106 of NHPA, section 7 of
ESA, CAA conformity, and section 4(f) of the DOT Act.
Section 1318(d)(2) of MAP-21 introduces a new authority that allows
State DOTs to make CE determinations on FHWA's behalf. The FHWA
interprets the provision in section 1318(d)(2) to allow a State DOT to
make determinations on FHWA's behalf without the need for certification
and FHWA's NEPA approval as required under 23 CFR 771.117. The FHWA
interprets section 1318(d)(3) as limiting this expanded authority to
actions listed in regulation (i.e., all (c)-list CEs and the examples
provided in the (d)-list) and any other CE that is added through a
process consistent with the requirements of 40 CFR 1508.4. This new
opportunity would avoid the need for State DOT certification and FHWA
review before the start of a project for those CEs identified in the
agreement. This NPRM proposes criteria to standardize all PCE
agreements, including those authorized under section 1318(d)(2).
The FHWA does not provide detailed project-by-project review for
the State DOT's use of a CE if the action is provided for in the PCE
agreement, the action meets stipulated conditions for avoiding adverse
environmental impacts, and the State DOT follows the stipulated
processing and documentation requirements. However, the PCE agreements
recognize that some actions qualifying for (d)-list CEs deserve
detailed project-by-project review by FHWA due to their context and
project scope, while others may not require such detailed project-by-
project review if specific environmentally adverse impact
considerations are avoided, and the State DOT agrees and provides
appropriate administrative controls (i.e., resources and oversight).
The FHWA's oversight would ensure that CE determinations are
appropriate and that State DOTs comply with all environmental
requirements. The result of oversight is the identification of best
practices and the implementation of corrective actions. The FHWA
Division Offices undertake periodic monitoring as well as informal
reviews of the State DOTs' procedures and documentation to ensure that
all potential environmental impacts are considered and compliance with
all other environmental requirements is properly documented.
The FHWA's 1989 PCE Memorandum originally recommended 14 base
conditions that, if met, would eliminate the need for FHWA's detailed
project-by-project review for those actions. Over time, experience in
applying these conditions has led to State-by-State PCE agreement
revisions to account for each State's unique environmental context.
The PCE agreements developed from the 1989 PCE Memorandum vary from
State to State in a number of respects due to the absence of standards
for national consistency. Agreements differ in how FHWA accomplishes
oversight and monitoring, how States process and document CEs, and how
States report CE certifications to FHWA. Some agreements have specific
stipulations regarding quality control and quality assurance, the term
of the agreement and provisions for termination, and public
availability of the PCE agreement itself. This rulemaking proposes to
rectify this consistency issue.
The FHWA has two additional programs that allow for State
assumption of certain NEPA responsibilities. The PCE agreements are
different than the arrangements established by 23 U.S.C. 326 (State
Assumption of Responsibility for Categorical Exclusion actions) and 23
U.S.C. 327 (Surface Transportation Project Delivery Program). First, as
mentioned above, the PCE agreements relate to the processing of the CE
under NEPA and do not extend to compliance with other environmental
requirements. In contrast, sections 326 and 327 specifically authorize
the assignment of other environmental review, consultation, and
decisionmaking responsibilities to States (except responsibilities for
government-to-government consultation with federally recognized Indian
tribes under section 327, responsibility for planning pursuant to 23
U.S.C. 134 and 135 or 49 U.S.C. 5303 and 5304, and any conformity
determination required under section 176 of the CAA) that will assume
the NEPA responsibilities. Second, PCE agreements do not remove FHWA's
legal responsibility for individual CE determinations. As a result,
FHWA retains the authority to overturn any CE determination made by the
State DOT under the PCE agreement at any time. The FHWA may also decide
to terminate or invalidate the PCE agreement at-will without prior
notice and with immediate effect. In contrast, under sections 326 and
327, the State becomes solely responsible and liable for complying with
and carrying out NEPA, and FHWA has no such responsibility or
liability. The FHWA does not retain veto authority over NEPA decisions
for individual projects after the CE assignment through a Memoranda of
Understanding (MOU) has been made. In addition, sections 326 and 327
provide for notice and an opportunity to cure where the FHWA proposes
to terminate a State's participation in the programs. Finally, FHWA
retains legal responsibility, including primary responsibility for
defending litigation, for CE determinations under PCE agreements. Under
sections 326 and 327, the State has primary responsibility for
defending determinations made under the
[[Page 57592]]
assignments if they are challenged in court.
IV. FTA's Approach to MAP-21's Section 1318 Requirements
A. CE Survey and New CEs
After the public comment period closed for the section 1318 CE
Survey Review, FTA considered all CE proposals received (269), whether
they were proposed by State DOTs, transit authorities, MPOs, or other
government agencies. The FTA determined that the majority of the
actions proposed as CEs (120) were covered by the CEs created under
section 771.118 and published as a final rule on February 7, 2013.
Further analysis revealed that 86 of the actions proposed as CEs would
fall under CEs that either have been or may be created pursuant to
other MAP-21 provisions, or through a combination of existing CEs at
section 771.118 and through other MAP-21 provisions. As those actions
are categorically excluded through existing CEs or through CEs
otherwise created, they were not considered further for this
rulemaking.
The FTA also removed 50 proposed actions from further consideration
as CEs for the following reasons: the action was not applicable to FTA
(e.g., control and removal of outdoor advertising), the action was too
broad or lacked sufficient detail to allow it to qualify as a CE under
the CEQ and FTA regulations (e.g., all projects in an urbanized area on
the theory that most of the areas are already disturbed), the action
would lack independent utility (e.g., project staging and storage
areas), or FTA lacks the basis for substantiation to show that the
activity qualifies as a CE under the CEQ and FTA regulations (e.g.,
stimulus or fast track projects).
Of the 13 remaining proposed CEs, FTA refined and combined the
language suggested by survey respondents, resulting in 5 CE proposals
(3 for section 771.118(c) and 2 proposed examples for section
771.118(d)). Per CEQ's CE Guidance and as alluded to above, FTA based
its proposal on a determination of ``whether a proposed activity is one
that, on the basis of past experience, normally does not require
further environmental review'' (75 FR 75631, Dec. 6, 2010). To do this,
FTA surveyed its records for documented CEs and Findings of No
Significant Impact (FONSIs), as well as the CEs for other Federal
agencies of similar nature, scope, and intensity. The FTA was able to
support the three section 771.118(c) CEs through substantiation. The
CEQ's CE guidance qualifies substantiation by stating that the ``amount
of information required to substantiate a CE depends on the type of
activities included in the proposed category of actions'' (75 FR at
75633). Given the direction that documentation should match the nature
of the CE and the proposed CEs for section 771.118(c), FTA anticipates
little environmental impact--and normally no significant impact--
associated with the proposed CEs; therefore, FTA is proposing the CEs
despite not having extensive documentation for some of the proposals.
Through this rulemaking, FTA specifically seeks public comment and
requests any supporting information to substantiate the potential
environmental impacts of its CE proposals.
The FTA also proposes two new examples under section 771.118(d).
The additions to section 771.118(d) would be examples of actions that
may be categorically excluded only with the required site specific
documentation. When a project sponsor submits documentation to support
an action under section 771.118(d), the grantee is substantiating the
appropriate use of the CE at that time. All five CE proposals are
presented in this NPRM for public review and comment.
B. Moving FTA (d)-List CEs to the (c)-List
Regarding the MAP-21 Section 1318(c) mandate to move the actions at
section 771.117(d)(1)-(3) to section 771.117(c) ``to the extent that
such movement complies with the criteria for a categorical exclusion''
in the CEQ regulation, FTA complied with section 1318(c) through the
final rule published on February 7, 2013 (78 FR 8964). When FTA created
the new list of CEs at section 771.118, it considered the actions found
in section 771.117(d) and moved those activities applicable to FTA's
program and for which FTA had supporting documentation to section
771.118(c), which corresponds with FHWA's section 771.117(c). Although
FTA complied with section 1318(c) through the final rule issued on
February 7, 2013, FTA will consider comments on this proposal and will
examine any supporting substantiation/data/documentation submitted by
members of the public. The FTA is particularly interested in hearing
from past sponsors of transit projects and members of the public
affected by those projects. Details regarding FTA's proposal regarding
section 1318(c) are found in the ``FTA Section-by-Section Analysis''
section.
General Discussion of the Proposals
This NPRM proposes to add four new CEs to FHWA's list of CEs in
section 771.117(c); move FHWA CEs in section 771.117(d)(1)-(3) to
paragraph (c) subject to a list of constraints; establish the
constraints for the moved (d)-list CEs in section 771.117(e); renumber
existing paragraph (e) in section 771.117 to (f); add new section
771.117(g) on PCE agreements; make conforming amendments to section
771.117(d); add three new CEs to FTA's list of CEs in section
771.118(c); and provide two new CE examples in FTA's list of CE
examples in section 771.118(d).
The CE lists in part 771 are the subject of current rulemaking
proceedings (see, e.g., 78 FR 13609, Feb. 28, 2013, implementing
sections 1316 and 1317 of MAP-21). Any final rule resulting from this
NPRM will adopt revised references as appropriate to reflect the final
results of the other MAP-21 rulemaking proceedings.
FHWA Section-by-Section Discussion of the Proposals
Section 771.117(c)
The FHWA proposes to amend section 771.117(c) by adding four new
CEs based on the CE Survey Review and moving the first three FHWA CEs
in paragraph (d) to paragraph (c). In FHWA's experience, actions that
meet the criteria of these proposed CEs do not normally have
significant environmental impacts. The FHWA has developed a
substantiation record summary to support the inclusion of the CEs,
which is provided in the docket for this rulemaking.
The FHWA proposes to amend section 771.117(c) by adding a new
paragraph (c)(24) for ``[l]ocalized 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.'' This
proposed addition is in direct response to requests for new CEs
received through the CE Survey Review. The CE would include a variety
of investigations that inform preliminary engineering for highway
projects. Geotechnical or other subsurface investigation, including
drilling of test bores/soil sampling, provides information for
preliminary design and for environmental analyses and permitting
purposes and is found normally not to have the potential to
significantly impact the environment. The CE also would cover other
site characterization actions such as archeological surveying and
testing to determine eligibility for the National Register of Historic
Places, and wetland
[[Page 57593]]
surveys for purposes of delineation and/or jurisdictional
determinations. The California Department of Transportation (Caltrans)
has provided substantiation for including these types of preliminary
engineering actions in Appendix A of the MOU that assigns CE
responsibilities to the State of California (http://www.dot.ca.gov/ser/downloads/MOUs/23usc326_ce_assignment_mou.pdf).
The FHWA proposes adding paragraph (c)(25) to create a new (c)-list
CE for ``[e]nvironmental 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.'' This CE includes a range of environmental mitigations
that became eligible for FHWA funding as a project with independent
utility in the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (Pub. L. 109-59). Section 328 of title
23, United States Code, makes certain stand-alone environmental
mitigation projects eligible for title 23 assistance. ``Environmental
restoration,'' as defined by FHWA in guidance (Guidance on 23 U.S.C.
328 Environmental Restoration and Pollution Abatement, Aug. 17, 2006,
http://www.fhwa.dot.gov/hep/guidance/envrestore.cfm), is a process
involving returning the habitat, ecosystem, or landscape to a
productive condition that supports natural ecological functions. Since
these natural systems are diverse and dynamic, the process of
recreating or duplicating their natural, or pre-settlement state is
virtually impossible, but the goal of the restoration should be to re-
establish the basic structure and function associated with natural,
productive conditions. Wetlands are part of the hydrological cycle and
are associated with the environmental restoration process. The FHWA has
existing guidance for wetland and natural habitat restoration and
mitigation measures, such as wetland and habitat banks or statewide and
regional conservation measures.
In the Guidance on 23 U.S.C. 328 Environmental Restoration and
Pollution Abatement, ``pollution abatement project'' is defined as
``practices or control measures designed to retrofit existing
facilities or minimize stormwater quality impacts from highway
projects.'' Examples of projects for environmental restoration and
pollution abatement actions include:
Establishing buffers or areas to protect riparian habitat
along drainage ways and stream corridors;
Installing stormwater quality retrofit and mitigation
measures (creation of detention, infiltration, and pervious pavements,
and establishment of native plant species for abatement of storm water
runoff); and
Restoring wetlands and natural habitat (e.g., revegetation
of disturbed areas with native plant species, stream or river bank
vegetation, and restoration or creation of wetlands, including creation
of wetland mitigation banks).
The FHWA's experience with environmental restoration and pollution
abatement projects is most extensive in California, where these actions
were added in Appendix A to the MOU that assigned Federal
responsibilities for CEs to Caltrans pursuant to 23 U.S.C. 326.
Additional substantiation for these actions includes projects from
Washington State, Texas, Alabama, and Alaska. As noted in the FHWA CE
substantiation summary included in the docket for this NPRM, projects
involving environmental restoration and pollution abatement have not
resulted in significant impacts in FHWA's experience. It is important
to note, however, that the decision to apply the CE must still take
into account unusual circumstances. This means, for example, that a
pollution abatement project that involves clear cutting a forest to
build a detention pond may involve unusual circumstances that would
potentially require the preparation of an environmental assessment or
environmental impact statement.
The FHWA proposes a new paragraph (c)(29) to create a new (c)-list
CE for the ``[p]urchase, 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.''
This is one of two CEs FHWA proposes related to ferry transportation
projects. The Agencies did not identify ferry boats in the Agencies'
NEPA Procedures when they finalized the Procedures in 1980 and revised
them in 1987, but ferry boats became a recognized vehicle in both
transit and highway projects beginning with the Ferry Boat
Discretionary Program in the Intermodal Surface Transportation
Efficiency Act of 1991 (Pub. L. 102-240). Under MAP-21, this program is
now titled the Construction of Ferry Boats and Ferry Terminal
Facilities and is no longer a discretionary program. The FHWA proposes
two new CEs to recognize ferry transportation actions. The purchase,
replacement, construction, or rehabilitation of ferry boats with
Federal-aid highway funds is similar to the acquisition, installation,
rehabilitation, replacement, and maintenance of ferry boats with funds
under chapter 53 of title 49, United States Code. The environmental
impacts of these actions are comparable. For these reasons, FHWA used
language from FTA's CE in 23 CFR 771.118(c)(7) to inform this proposed
CE.
The FHWA is proposing two constraints for this proposed CE that are
modeled after constraints in FTA's CE: (1) No change in function of the
ferry terminals; and (2) that the ferries be accommodated by existing
facilities. The FHWA has modified the second constraint to allow for
situations where a new facility is needed and its construction would
qualify for an existing CE. This proposed modification is modeled after
FHWA's CE for the purchase of vehicles in section 771.117(c)(17), which
allows for the purchase of vehicles where the use of the vehicles can
be accommodated by new facilities which themselves are within a CE.
The FHWA proposes paragraph (c)(30) to create a new (c)-listed CE
for ``[r]ehabilitation 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 users. Example actions include work on pedestrian and
vehicle transfer structures and associated utilities, buildings, and
terminals.'' The environmental impacts of rehabilitation or
reconstruction actions of existing ferry facilities are similar to the
environmental impacts of rehabilitation or reconstruction actions of
rail and bus buildings and ancillary facilities. Rehabilitation and
reconstruction of bus and rail buildings qualify for an existing FHWA
CE under section 771.117(d)(9). Additionally, the environmental impacts
of rehabilitation or reconstruction actions of existing ferry
facilities using Federal-aid highway funds are similar to the
environmental impacts of actions to rehabilitate and reconstruct ferry
facilities using funds under chapter 53 of title 49, United States
Code, which qualify for a FTA CE under section 771.118(c)(8).
The FHWA proposes to include constraints on paragraph (c)(30)
modeled after FTA's section 771.118(c)(8) constraints (i.e., that the
[[Page 57594]]
projects occupy substantially the same geographic footprint and do not
result in a change in their functional use). The FHWA is proposing the
additional constraint--that the project does not result in a
substantial increase in users--to be consistent with the existing
constraint in FHWA's CE for the rehabilitation or reconstruction of
rail and bus buildings. Example actions that this CE would cover
include work on pedestrian and vehicle transfer structures and
associated utilities, buildings, and terminals.
The FHWA considered the addition of two new CEs for bridge removal
projects and preventive maintenance modeled after the proposed FTA CEs
for sections 771.118(c)(14) and (15) (see FTA Section-by-Section
Analysis for Section 771.118(c)). The FHWA decided not to propose these
CEs at this time. The FHWA does not have sufficient experience with
projects involving only bridge removal to warrant the creation of a new
CE. Typically, for FHWA, a bridge removal action is associated with a
bridge replacement project that is already listed as a CE. For
preventive maintenance actions, FHWA found that the majority of actions
that would be eligible as preventive maintenance under title 23 would
qualify for other CEs in section 771.117 and therefore, no new FHWA CE
was needed at this time.
The FHWA proposes to move the first three listed examples in
section 771.117(d)(1)-(3) to section 771.117(c)(26)-(28). The proposal
is to move paragraph (d)(1) ``[m]odernization of a highway by
resurfacing, restoration, rehabilitation, reconstruction, adding
shoulders, or adding auxiliary lanes (including parking, weaving,
turning, and climbing)'' to paragraph (c)(26); paragraph (d)(2)
``[h]ighway safety or traffic operations improvement projects,
including the installation of ramp metering control devices and
lighting'' to paragraph (c)(27); and paragraph (d)(3) ``[b]ridge
rehabilitation, reconstruction, or replacement or the construction of
grade separation to replace existing at-grade railroad crossings'') to
paragraph (c)(28). Each of the moved paragraphs will contain a
reference to constraints developed to support the move. The proposed
constraints are discussed below in the Section-by-Section discussion of
new paragraph (e).
The FHWA proposes paragraph (c)(26) to create a new (c)-list CE for
actions involving the ``[m]odernization of a highway by resurfacing,
restoration, rehabilitation, reconstruction, adding shoulders, or
adding auxiliary lanes (including parking, weaving, turning, and
climbing) if the action meets the conditions in paragraph (e).'' A
version of this CE has existed since the initial publication of the
Agencies' NEPA Procedures in 1980. The 1980 version, which did not
divide the CEs into two groups, as is the case in the current
regulations, included ``widening less than a single lane width'' and
``correcting substandard curves and intersections'' as additional
examples of what actions the CE covered. The 1980 version contained
constraints that prohibited the application of the CE if the proposed
project required ``acquisition of more than minor amounts of right-of-
way or substantial changes in access control.'' The FHWA removed these
constraints as part of the 1987 amendments that placed this action in
the (d)-list CE. This restriction was not needed for the processing of
these actions as (d)-list CEs. In FHWA's experience, actions that did
not meet the prescriptive limitations (e.g., minor amounts of right-of-
way, substantial change in access control) could still meet FHWA's
criteria for CE classification after FHWA's project-by-project
evaluation of their context under paragraph (d)(1). The FHWA proposes
to restore these constraints as part of the list of constraints in
paragraph (e) to ensure that these actions, when processed as (c)-list
CEs, would normally not cause significant effects.
The FHWA proposes paragraph (c)(27) to create a new (c)-list CE for
actions associated with ``[h]ighway safety or traffic operations
improvement projects, including the installation of ramp metering
control devices and lighting if the project meets the conditions in
paragraph (e).'' A version of this CE has existed since the initial
publication of the Agencies' NEPA Procedures in 1980. The 1980 version
of this CE included examples such as ``correction or improvement of
high hazard locations; elimination of roadside obstacles; highway
signing; pavement markings; traffic control devices; railroad warning
devices; and lighting.'' The 1980 version also contained constraints
that prohibited the application of the CE if the proposed project
required ``acquisition of more than minor amounts of right-of-way or
substantial changes in access control.''
In 1983, FHWA proposed that CE language for safety and traffic
operation projects be added to the (d)-list examples requiring FHWA
detailed review. The FHWA received public comments objecting to the
inclusion of ``traffic control devices'' in the (d)-list. In response,
FHWA decided to split those activities into two CEs: ``traffic
signals'' was added to the (c)-list, whereas ``ramp metering controls''
was placed in the (d)-list. The FHWA also removed the constraints
against ``acquisition of more than minor amounts of right-of-way or
substantial changes in access control'' in the 1987 amendments because
the Agency moved the CE text to the (d)-list and the detailed review
would assist in determining the context of these impacts. The FHWA
proposes to restore these constraints as part of the list of
constraints in paragraph (e) to ensure that these actions, when
processed as (c)-list CEs, would have no effects or almost never cause
significant effects.
As discussed in the General Background section of this NPRM,
paragraph (c)(27) would cover roundabouts and traffic circle projects
because these are considered highway safety or traffic operations
improvement projects as long as they meet the constraints provided in
paragraph (e). Roundabouts and traffic circle projects that do not meet
the constraints provided in paragraph (e) may continue to be processed
as (d)-list CE if they meet the conditions for the CE use.
The FHWA proposes paragraph (c)(28) to create a new (c)-list CE for
actions involving ``[b]ridge rehabilitation, reconstruction, or
replacement or the construction of grade separation to replace existing
at-grade railroad crossings if the actions meet the conditions of
paragraph (e).'' A version of this CE has existed since the initial
publication of the Agencies' NEPA Procedures in 1980 before the split
of the CEs into two groups. The original CE language provided for the
``[r]econstruction or modification of an existing bridge structure on
essentially the same alignment or location (e.g., widening less than a
single travel lane, adding shoulders or safety lanes, walkways,
bikeways, or pipelines) except for bridges on or eligible for inclusion
in the National Register or bridges providing access to barrier
islands. Reconstruction or modifications of an existing one lane bridge
structure, presently serviced by a two lane road and used for two lane
traffic, to a two lane bridge on essentially the same alignment or
location, except bridges on or eligible for inclusion in the National
Register or bridges providing access to barrier islands.'' In addition
to placing the CE in the (d)-list examples, the 1987 amendments removed
the restrictions prohibiting the use of the CE for modifications of
bridges that are on or eligible for inclusion in the National Register
of Historic Places or bridges that provide access to barrier islands.
The FHWA reasoned that the evaluation of unusual circumstances, coupled
with the detailed review and documentation
[[Page 57595]]
expectations for the (d)-list CE, assisted in identifying those
situations where modifications of historic or barrier island bridges
might need a higher level of NEPA analysis (i.e., an EA or EIS). As
discussed below, the FHWA is proposing to include a version of these
conditions in paragraph (e). This CE would cover all actions associated
with the bridge rehabilitation or replacement project, including the
creation of temporary roads and bridges. It is important to note that
temporary work that raises unusual circumstances (e.g., taking place in
endangered species habitat) may trigger the need for a higher level of
NEPA review for the entire project. Some temporary work such as the
construction of a detour road or bridge may require a higher level of
scrutiny to ensure adequate consideration of unusual circumstances.
Section 771.117(d)
The FHWA proposes to make several amendments to section 771.117(d)
to account for the proposed move of the (d)-list CEs in paragraphs (1),
(2), and (3). First, FHWA proposes to remove and reserve paragraphs
(d)(1), (d)(2), and (d)(3). Second, FHWA proposes to add a new
paragraph (d)(13) for ``[a]ctions described in paragraphs (c)(26),
(c)(27), and (c)(28) that do not meet the constraints in paragraph (e)
of this section.'' The purpose of this language is to preserve the use
of the (d)-list CE for those projects that could be covered by the
moved language but do not meet the constraints proposed. The FHWA would
make a CE determination based on documentation that demonstrates no
significant environmental impacts would result.
In addition, FHWA proposes minor changes to the introductory
sentence in paragraph (d) to account for the authority provided in
section 1318(d) of MAP-21 and the proposed new paragraph (g). The FHWA
proposes to change the first sentence to ``[a]dditional 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'' (emphasis added).
This amendment makes it clear that FHWA NEPA approval is not expected
on a case-by-case basis in situations where a PCE agreement covers the
action and the State is processing the CE on behalf of FHWA.
Section 771.117(e)
The FHWA proposes to renumber current paragraph (e) as paragraph
(f). The FHWA proposes new language for paragraph (e) describing the
constraints applicable to the proposed CEs under paragraphs (c)(26),
(c)(27), and (c)(28). These constraints are needed to ensure the
actions falling under paragraphs (c)(26), (c)(27), or (c)(28) do not
significantly affect the environment and, therefore, can be processed
under the (c)-list without FHWA detailed project-by-project review. The
FHWA believes that listing these proposed constraints in new paragraph
(e) will encourage project proponents to design their projects in a way
that avoids the need for FHWA detailed project-by-project review.
Projects that cannot meet these constraints would still be eligible for
a (d)-listed CE, if the projects meet CE criteria established in
paragraph (d).
The FHWA relied on its experience in the implementation of PCE
agreements for the development of the constraints. The FHWA has
promoted PCE agreements since 1989 recognizing that some actions
qualifying for (d)-list CEs deserve careful consideration and approval
by FHWA due to their context, while others may not require such a
detailed individual project-by-project review as long as specific
environmental adverse impact constraints are followed, and the State
DOT agrees and provides appropriate administrative controls (i.e.,
resources and oversight). The FHWA's 1989 PCE Memorandum recommended 14
nationwide conditions that, if met, could allow the processing of (d)-
list CEs without the need for FHWA detailed project-by-project review.
The FHWA's use of conditions in PCE agreements has the same effect as
the proposal for moving the (d)-list CEs to the (c)-list while applying
conditions--to define a subset of actions that would otherwise fit
under paragraphs (d)(1), (d)(2), and (d)(3) CEs but do not merit FHWA
detailed project-by-project review based on a project's impacts. The
FHWA notes that establishing such constraints is supported by the CEQ
CE Guidance, which expands on 40 CFR 1508.4 (75 FR 75632, Dec. 6,
2010). After an evaluation of the original 14 conditions in the 1989
memorandum and consideration of its field staff experience, FHWA is
proposing 6 constraints be listed in paragraph (e).
First Proposed Constraint
The first proposed constraint would establish that a proposed
action fitting the language under paragraphs (c)(26), (c)(27), or
(c)(28) may not involve ``an acquisition of more than a minor amount of
right-of-way or that would result in any commercial or residential
displacements.'' This constraint is similar to the condition that
appeared in the 1980 version of the CEs for modernization of highways
and for highway safety or traffic operation improvement projects. The
proposed constraint is based on a condition described in FHWA's 1989
PCE Memorandum indicating that the action must not involve ``[t]he
acquisition of more than minor amounts of temporary or permanent strips
of right-of-way for construction of such items as clear vision corner
and grading. Such acquisitions will not require any commercial or
residential displacements.'' The FHWA proposes to simplify the
language. Typical examples of ``minor amounts of . . . right-of-way''
include low cost, strip acquisitions, and corner acquisitions. The
intent of the limitation is to distinguish between projects involving
minor use of additional land (e.g., rehabilitation, renovation) from
projects involving substantial land use changes and the associated
potential for adverse impacts. The FHWA reviewed existing PCE
agreements and found that FHWA Divisions and State DOTs limit the
amount of new land that triggers FHWA NEPA approval using acres (with
ranges between zero and up to 10 acres depending on the State) or
percentages (e.g., more than 10 percent of parcels under 10 acres in
size). The FHWA proposes to leave the definition of ``minor'' up to the
discretion of FHWA and each State DOT to account for each State's
unique characteristics and considerations.
Second Proposed Constraint
The second proposed constraint would establish that a proposed
action fitting the language under paragraphs (c)(26), (c)(27), or
(c)(28) may not involve ``[a]n 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.'' This proposal is an updated
version of the condition in FHWA's 1989 PCE Memorandum that excluded
actions involving ``any U.S. Coast Guard construction permits or any
U.S. Army Corps of Engineers section 404 permits.'' Section 144(h) of
title 23, United States Code, and 23 CFR 650--subpart H establish
procedures for determining which bridge actions need a bridge permit
from the U.S. Coast Guard. These include bridges that cross waters that
are (1) tidal and used by recreational boating, fishing, and other
small vessels 21 feet or greater in length; or (2) used or susceptible
to use in their natural condition or by reasonable
[[Page 57596]]
improvement as a means to transport interstate or foreign commerce.
Construction of these types of bridges require coordination with the
U.S. Coast Guard and detailed information to determine their
environmental impacts, including impacts on navigation. For wetlands,
the proposal establishes as a threshold the terms and condtions for
U.S. Army Corps of Engineers (USACE) nationwide or general permits.
Actions requiring USACE nationwide or general permits may be processed
as (c)-list CEs. The FHWA's experience with PCE agreements is that
actions having minor impacts on ``waters of the United States'' (such
as wetlands), which only require nationwide or other general permits
under section 404 of the CWA or section 10 of the Rivers and Harbors
Act, do not warrant a detailed FHWA project-by-project review because
they normally do not have the potential for significant impacts. An
initial finding that the action could meet the terms and conditions of
a nationwide or general permit may be made by FHWA or a State DOT using
the project information available at the time of the proposal. An
official determination from USACE is not required for the CE
determination. The FHWA notes, however, that this initial finding does
not bind the USACE in making its official determination, and a USACE
determination that the project does not qualify for a nationwide or
general permit and requires an individual permit under either section
404 of the CWA or section 10 of the Rivers and Harbor Act would
constitute new information that could trigger a re-evaluation of the CE
determination under 23 CFR 771.129.
Third Proposed Constraint
The third proposed constraint would establish that a proposed
action fitting the language under paragraphs (c)(26), (c)(27), or
(c)(28) may not involve ``[a] finding of adverse effect to historic
properties under the National Historic Preservation Act, 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 likely to
adversely affect threatened or endangered species or critical habitat
under the Endangered Species Act.''
This proposal consolidates three conditions discussed in FHWA's
1989 PCE Memorandum. The first excluded actions that involved ``[a]
determination of adverse effect by the State Historic Preservation
Officer.'' The Advisory Council on Historic Preservation's (ACHP)
regulations implementing section 106 of NHPA establish that an
``adverse effect'' occurs when the Federal agency finds, in
consultation with the State Historic Preservation Officer or Tribal
Historic Preservation (and when applicable the ACHP), that ``an
undertaking may alter, directly or indirectly, any of the
characteristics of a historic property that qualify the property for
inclusion in the National Register in a manner that would diminish the
integrity of the property's location, design, setting, materials,
workmanship, feeling, or association'' (36 CFR 800.5(a)(1)). Not all
actions, labeled ``undertakings'' under section 106 procedures,
affecting historic properties result in an adverse effect finding. The
FHWA's experience with PCE agreements is that the ``adverse effect''
threshold appropriately delineates when FHWA should engage in detailed
FHWA project-by-project review.
The second condition excluded actions that involved the ``use of
properties protected by Section 4(f) of the Department of
Transportation Act.'' Section 138 of title 23, United States Code, and
49 U.S.C. 303 (originally section ``4(f)'' of the DOT Act) prohibit the
approval of any program or project that requires the use of any
publicly owned land from a public park, recreation area, or wildlife
and waterfowl refuge of national, State, or local significance, or any
land from an historic site of national, State, or local significance,
unless there is no feasible and prudent alternative to the use of such
land and all possible planning to minimize the harm is included. These
sections were amended by SAFETEA-LU to provide for the use of such
resources without the need for this finding if the use would result in
de minimis impacts. The Agencies developed regulations to implement the
procedures of section 4(f) and its de minimis impact allowance in 23
CFR part 774. The FHWA has determined that actions that result in the
use of resources protected by section 4(f) but result in de minimis
impacts do not warrant detailed FHWA project-by-project review because
the impacts to these resources are considered to be minor and not
potentially significant.
Finally, the third condition excluded actions that ``occur in an
area where there are no federally listed endangered or threatened
species or critical habitat.'' This proposal revises the language from
this 1989 condition by focusing on the impact of the project on these
protected resources instead of the location of the project. This
constraint recognizes that projects may be located in an area with
listed species or within critical habitat areas, but would result in
minor impacts to these resources such that FHWA would issue a ``no
effect'' finding or a ``not likely to adversely affect'' finding with
concurrence from the applicable Federal resource agency (i.e., U.S.
Fish and Wildlife Service or National Marine Fisheries Service). This
constraint would require some level of consideration or analysis to
identify potential effects to listed species or critical habitat and
might require coordination with the applicable Federal resource agency.
However, the coordination could be applied to a program of projects.
For example, the FHWA Division or the State DOT may agree with the
Federal resource agency on conditions, terms, or pre-approved
mitigation that would avoid or reduce impacts that a project could have
on the protected resources, in a manner that would result in
streamlined ``no effect'' or ``not likely to adversely affect''
determinations. Thus, projects meeting, or designed to meet, these
measures could meet this constraint and avoid the need for detailed
FHWA project-by-project review.
Fourth Proposed Constraint
The fourth proposed constraint would establish that a proposed
action fitting the language under paragraphs (c)(26), (c)(27), or
(c)(28) may not involve ``[c]onstruction of temporary access, or the
closure of an existing road, bridge, or ramps, that would result in
major traffic disruptions or substantial environmental impacts.'' The
FHWA 1989 PCE Memorandum provided a condition for ``[t]he use of a
temporary road, detour, or ramp closure unless the use of such
facilities satisfy the following conditions:
Provisions are made for access by local traffic and so
posted.
Through-traffic dependent business will not be adversely
affected.
The detour or ramp closure, to the extent possible, will
not interfere with any local special event or festival.
The temporary road, detour or ramp closure does not
substantially change the environmental consequences of the action.
There is no substantial controversy associated with the
temporary road, detour, or ramp closure.''
The FHWA recognized that some temporary road, bridge, detour, or
ramp closures deserved a higher level of scrutiny and detailed FHWA
project-by-project review. The proposed constraint simplifies the 1989
condition, focusing on the elements that are of particular concern for
these temporary detours--mainly traffic and other adverse environmental
impacts. Consideration of the impacts on local users' transportation
patterns, including businesses and community members, as
[[Page 57597]]
well as the impacts on special events would be taken into account in
evaluating whether the temporary measure would have major traffic
disruptions in a manner that would warrant a detailed FHWA project-by-
project review. Consideration of adverse environmental impacts would
include consideration of the temporary, but acute, environmental
impacts on natural and cultural resources, as well as other human
environment considerations (e.g., community cohesion, and emergency
response times).
Fifth Proposed Constraint
The fifth proposed constraint would establish that a proposed
action fitting the language under paragraphs (c)(26), (c)(27), or
(c)(28) may not involve ``[c]hanges in access control.'' This
constraint is similar to the constraint that appeared in the 1980
version of the CEs for modernization of highways and for highway safety
or traffic operation improvement projects, and is similar to a
condition on access control changes in the FHWA 1989 PCE Memorandum.
Such changes normally require consideration of local traffic patterns
and possible indirect impacts from development. However, not all
changes in access are alike. Some changes may raise minor concerns
regarding their environmental effects and safety and operational
performance, while others may raise concerns regarding their
environmental effects and safety and operational performance that
deserve further evaluation. After taking into account these
considerations and the original language, FHWA has determined that the
constraint should retain the original language of the 1989 condition
but acknowledges that State DOTs and FHWA Division Offices may
establish programmatic approaches to process access control changes
based on their impacts.
Sixth Proposed Constraint
The sixth and last proposed constraint would establish that a
proposed action fitting the language under paragraphs (c)(26), (c)(27),
or (c)(28) may not involve ``[a] floodplain encroachment other than for
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.'' This proposed constraint
consolidates two conditions in the FHWA 1989 PCE Memorandum. The first
excluded actions that involved ``any work encroaching on a regulatory
floodway or any work affecting the base floodplain (100-year flood)
elevations of a water course or lake.'' It is FHWA's policy to prevent
uneconomic, hazardous, or incompatible use and development of the
Nation's floodplains (23 CFR 650.103). An action taking place within
the base floodplain would trigger the decisionmaking process required
by Executive Order 11988, Floodplain Management, and established in 23
CFR part 650 subpart A, which requires evaluation of practicable
alternatives and assessment of impacts.
The FHWA is proposing changes to the 1989 condition by simplifying
the language and adding some clarifications. Section 650.105(e) of 23,
Code of Federal Regulations, defines encroachment as ``an action within
the limits of the base floodplain.'' Regulatory floodways are located
within base floodplains. Retaining both the phrase ``encroaching on a
regulatory floodway'' and the phrase ``any work affecting the base
floodplain'' would be redundant under current regulatory definitions.
Retaining the scope of the condition for all work affecting floodplains
would have eliminated most if not all bridge rehabilitation,
reconstruction, and replacement projects. To avoid this unintended
result, FHWA is proposing to allow the use of the proposed CEs for work
in floodplains if the action is for a functionally dependent use or an
action that facilitates open space use. In developing this language,
FHWA considered the Federal Emergency Management Agency's (FEMA)
regulations since that agency regularly works with surface
transportation actions within the floodplain and provides advice to
other Federal agencies on floodplain management issues (see 44 CFR
9.11(d)(1) (establishing that the only FEMA-funded construction actions
permissible within regulatory floodways are functionally dependent uses
or actions that facilitate open space use); 44 CFR 60.6(a)(7) (allowing
communities to consider variances in their local floodplain management
ordinances for functionally dependent uses)). The term ``functionally
dependent use'' is intended to follow FEMA's definition in 44 CFR 59.1,
which is ``a use which cannot perform its intended purpose unless it is
located or carried out in close proximity to water.'' Examples provided
in the proposal for clarity include bridges and wetland mitigation
projects. These are just two examples of actions that have to be
located close to water to serve their purpose. The term ``facilitate
open space use'' is intended to capture projects that do not lead to
additional base floodplain development and are compatible with the
restoration and preservation of natural and beneficial floodplain
values. Examples include recreational trails, and bicycle and
pedestrian paths.
A second condition from the FHWA 1989 PCE Memorandum consolidated
into this proposal would exclude actions involving ``[c]onstruction in,
across or adjacent to a river designated as a component or proposed for
inclusion in the National System of Wild and Scenic Rivers published by
the U.S. Department of the Interior/U.S. Department of Agriculture.''
Such projects require consultation and documentation of any possible
impacts, although may still be processed as a CE. The original
condition language has been simplified in this proposal.
Finally, there were several conditions discussed in the FHWA 1989
PCE Memorandum that FHWA considered, but did not pursue in this
proposal. These included conditions related to work in wetlands,
actions involving any known hazardous materials sites, conformity with
the Air Quality Implementation Plan, and consistency with a State's
Coastal Zone Management Plan. The FHWA believes that the proposed
constraint related to individual permits under section 404 of the CWA,
together with FHWA's regulations at 23 CFR part 777 (implementing
Executive Order 11990, Protection of Wetlands, and authorizing
expenditure of Federal-aid highway funds for wetland impact mitigation)
would address concerns regarding potential impacts to wetlands. The
FHWA believes that the existing statutory and regulatory framework for
appropriate environmental liability inquiries, including the U.S.
Environmental Protection Agency's ``all appropriate inquiries'' rule at
40 CFR part 312, reduce the potential for acquiring unwanted clean-up
liability. In addition, FHWA believes that conditions related to air
quality conformity under the section 176 of the CAA and consistency
determinations with State coastal uses under the Coastal Zone
Management Act are unnecessary since the actions must meet these
requirements regardless of whether the project qualifies for the (c)-
or (d)-list CE. Although these conditions have not been included as
constraints in this proposal, FHWA notes that these considerations
would continue to be taken into account in the evaluation of unusual
circumstances.
[[Page 57598]]
Section 771.117(g)
The FHWA proposes to add paragraph (g) to 23 CFR 771.117 to
establish requirements for developing PCE agreements, including
agreements that would allow State DOTs to make CE determinations on
FHWA's behalf. The proposed language in this NPRM would require that
the PCE agreements include the process for making CE determinations.
The process includes defining roles and responsibilities, appropriate
quality control, and expected documentation for each determination. The
FHWA proposes that the PCE agreements provide for a monitoring and
oversight process by FHWA and for State DOTs to take any corrective
action that is identified and needed as a result of this oversight. The
proposal would direct the State DOT to establish in the PCE agreements
how the agreement can be renewed and improved based on performance by
the State DOT. The proposal would require PCE agreements to provide for
voluntary and involuntary termination of the agreement. The proposal
would require public availability of the PCE agreements, which could be
met through publication on the State DOT Web site and making the
document available in hard copy when requested. The proposal would
establish a five-year renewal process to ensure FHWA retains
appropriate oversight of processing outcomes by the State DOT. This
timeframe is consistent with recently issued PCE agreements. Finally,
the proposal would require FHWA legal sufficiency and Headquarters
review of the draft programmatic agreement prior to FHWA approval to
ensure consistency of the agreements nationwide. This is critical given
FHWA's retention of legal liability for individual CE determinations by
State DOTs.
If the proposal becomes final, then FHWA would review all existing
PCE agreements as part of the implementation of section 1318(d) and
ensure consistency with the new criteria specified in the proposed
paragraph (g). Existing PCE agreements would continue to operate until
revised, but would need to be revised no later than 5 years after
publication of the rule.
FTA Section-by-Section Analysis
Section 771.118
The FTA proposes to add three new CEs to section 771.118(c) and two
new CE examples to section 771.118(d). The proposed CEs are based on
responses to the CE Survey Review, as well as FTA's substantiation
efforts described above. The CEs proposed in this NPRM are listed and
explained below along with a substantiation summary for the CEs
proposed for section 771.118(c). A summary of the documentation used
for substantiation of these CEs (``FTA Section 1318 Substantiation'')
is available in the NPRM docket on Regulations.gov.
Section 771.118(c)
``(14) Bridge removal and related activities, such as in-channel
work, disposal of materials and debris in accordance with applicable
regulations, and transportation facility realignment.'' This proposed
CE expands the example at section 771.118(d)(2)(bridge replacement or
rail grade separation) to include bridge removal, specifically, and
would be located on the c-list at 23 CFR 771.118(c). Although a bridge
is removed or taken out of service during a bridge replacement project,
this CE expands the activity to include those actions that remove a
bridge permanently, which would affect the associated transportation
network, and allows the approval through the c-list at 23 CFR
771.118(c). In addition to the bridge removal action itself, it is
likely that the transportation facility to and from the bridge would
need to be realigned, materials and debris would need to be disposed of
in an approved manner per applicable regulations, and in-channel work
performed to remove piers or reduce pier height for safer in-water
navigation when conducting a complete bridge removal. The additional
activity (i.e., bridge removal and related activities) is not
inconsistent with other activities categorically excluded under
existing FTA regulations, and is a logical extension of those
activities currently categorically excluded (see ``FTA Section 1318
Substantiation'').
``(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.'' This CE expands the
exclusion found at section 771.118(c)(3) (environmental mitigation or
stewardship activity) and section 771.118(c)(8) (maintenance, rehab,
and reconstruction of facilities) to include preventative maintenance
activities for culverts and channels, specifically. The proposed CE is
limited to culvert and channel maintenance within or adjacent to the
transportation right-of-way in order to preserve the functionality of
the culverts and channels, and to prevent damage to the transportation
facility and adjoining property. Actions falling under this CE would be
performed on an on-going, but as-needed basis to maintain the continued
operation of the structure. The additional activity (i.e., preventative
maintenance activities for culverts and channels) is not inconsistent
with other activities categorically excluded under existing FTA
regulations, and is a logical extension of those activities currently
categorically excluded (see ``FTA Section 1318 Substantiation'').
``(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.'' This CE focuses on geotechnical
and other subsurface investigations that inform preliminary
engineering, environmental analyses, and permitting. The CE expands the
CEs found at section 771.118(c)(3) (environmental mitigation or
stewardship activity) and section 771.118(c)(4) (planning and
administrative activity) to include geotechnical and other
investigation activities. The additional activity (i.e., geotechnical
and other investigation activities) is not inconsistent with other
activities categorically excluded under existing FTA regulations, and
is a logical extension of those activities currently categorically
excluded (see ``FTA Section 1318 Substantiation''). In fact, FTA
received several requests to include geotechnical activities in section
771.118(c)(4) in response to the March 2012 NPRM (77 FR 15310, Mar. 15,
2012), but FTA made a distinction between geotechnical activities in
that final rule based on its substantiation work completed at that
time. Limited geotechnical work (such as the use of ground penetrating
radar) could be approved under section 771.118(c)(4) as long as it did
not involve construction or lead directly to construction. The CE
proposed in this NPRM, however, would allow for more substantial
geotechnical work based on further substantiation work done since the
issuance of the final rule on February 7, 2013.
The MAP-21 Section 1318(c) requires the Secretary to move the
actions at section 771.117(d)(1)-(3) to section 771.117(c) ``to the
extent that such movement complies with the criteria for a categorical
exclusion'' in the CEQ regulation. The FTA met this requirement through
the NEPA
[[Page 57599]]
rulemaking published in February 2013 (see 78 FR 8964, Feb. 7, 2013).
When FTA issued the NEPA rulemaking noted above, it presented
section 771.118(d)(1) (which corresponds with FHWA section
771.117(d)(1)), and section 771.118(d)(2) (which is a modified version
of FHWA section 771.117(d)(3)), in the list of examples under section
771.118(d). The FTA retained the section 771.117(d)(1) language as is
when FTA created section 771.118(d)(1) due to its limited applicability
to transit actions and FTA's need to review documentation associated
with actions falling under this example in order to verify the action
would not have significant impact on the environment. Section
771.117(d)(2) was covered, as the example applies to FTA, in section
771.118(c)(4). The FTA moved part of the actions covered under section
771.117(d)(3) to section 771.118(c)(8), and kept the larger aspects of
section 771.117(d)(3) in FTA's d-list at section 771.118(d)(2). The
modifications to the language for the examples in sections
771.118(d)(1)-(3) were based on FTA's substantiation effort and
applicability to FTA's program.
Pursuant to MAP-21 section 1318(c), FTA revisited sections
771.118(d)(1) and (2), but did not locate additional supporting data or
documentation that would enable FTA to move those examples to section
771.118(c). Without supporting data or documentation, FTA cannot move
the examples located at section 771.118(d)(1) and (2) to section
771.118(c) and be consistent with CEQ's regulations, which require a
showing that categorical exclusions ``do not individually or
cumulatively have significant effect on the human environment'' (40 CFR
1508.4). Through this NPRM, however, FTA requests public comment on
FTA's proposal to retain paragraphs (1) and (2) in section 771.118(d).
Additionally, FTA requests the public, such as past sponsors for
transit projects, provide supporting data or documentation when
possible. The FTA will consider any substantiation or supporting data/
documentation submitted to the docket for this NPRM for the types of
projects found at section 771.118(d)(1) and (2) that resulted in
documented CEs or FONSIs. After the close of the public comment period,
FTA will review the proposals and supporting data/documentation in
determining whether it is possible to move further portions of
paragraphs (1) and (2) under section 771.118(d) to section 771.118(c)
in a final rule.
Section 771.118(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.'' This CE example would focus on those transportation
facility realignments needed in order to improve rail safety for the
grantee and the public. This action is proposed for inclusion in
Section 771.118(d) because FTA would require documentation regarding
the action in order to ensure no significant impacts would be incurred
as part of the proposed action.
``(8) Modernization or minor expansions of transit structures and
facilities outside existing right-of-way, such as bridges, stations or
rail yards.'' This CE example would focus on modernizing or providing
minor expansions of transit structures and facilities outside the
existing right-of-way since activities occurring within the existing
transportation right-of-way could fall under the CE created pursuant to
section 1316 of MAP-21. The FTA would require documentation for actions
falling under this example in order to ensure no significant impacts
would be incurred as part of the proposed action.
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments, the
Agencies will also continue to file relevant information in the docket
as it becomes available after the comment period closing date, and
interested persons should continue to examine the docket for new
material. The Agencies may publish a final rule at any time after close
of the comment period.
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 have determined preliminarily that this action would not be a
significant regulatory action under section 3(f) of Executive Order
12866 nor would it be significant within the meaning of DOT regulatory
policies and procedures (44 FR 11032).
This NPRM proposes to add new CEs as sections 771.117(c)(24),
(c)(25), (c)(26), (c)(27), (c)(28), (c)(29), and (c)(30) and sections
771.118(c)(14), (c)(15), (c)(16), (d)(7), and (d)(8), pursuant to
section 1318 of MAP-21. By definition these actions normally do not
result in individual or cumulative significant environmental impacts.
These actions are subject to the unusual circumstances provision in 23
CFR 771.117(b) and 771.118(b), which screens out those rare cases where
the action may result in significant impacts. This NPRM also proposes
to establish criteria for Programmatic CE Agreements between State DOTs
and FHWA. These agreements further expedite NEPA environmental review
for highway projects.
These proposed changes would not adversely affect, in any material
way, any sector of the economy. In addition, these changes would not
interfere with any action taken or planned by another agency and would
not materially alter the budgetary impact of any entitlements, grants,
user fees, or loan programs. Consequently, a full regulatory evaluation
is not required. The Agencies anticipate that the changes in this
proposal would enable projects to move more expeditiously through the
Federal review process and would reduce the preparation of extraneous
environmental documentation and analysis not needed for compliance with
NEPA and for ensuring that projects are built in an environmentally
responsible manner. The vast majority of FHWA actions presently are
determined to be CEs. In a recent survey conducted on CE usage, carried
out pursuant to MAP-21 section 1318, responding State DOTs reported
that 90 percent to 99 percent of their projects qualified for CE
determinations. Approximately 90 percent of FTA's actions are within
the scope of existing CEs. The Agencies anticipate the percentages may
increase with the promulgation of the proposed CEs. The Agencies are
not able to quantify the economic effects of these changes, because the
types of projects that will be proposed for FHWA and FTA funding and
their potential impacts are unknown at this time, particularly given
changes to the programs in MAP-21. The Agencies request comment,
including data and information on the experiences of project sponsors,
on the
[[Page 57600]]
likely effects of the changes being proposed.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), the Agencies have evaluated the effects of this
proposed rule on small entities and anticipate that this action would
not have a significant economic impact on a substantial number of small
entities. The proposed revision could expedite environmental review and
thus would be less than any current impact on small business entities.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This proposed 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). Further, in
compliance with the Unfunded Mandates Reform Act of 1995, the Agencies
will evaluate any regulatory action that might be proposed in
subsequent stages of the proceeding to assess the effects on State,
local, and tribal governments and the private sector.
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. This proposed action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132, and the Agencies have determined that this proposed action
would not have sufficient federalism implications to warrant the
preparation of a federalism assessment. The Agencies have also
determined that this proposed action would not preempt any State law or
State regulation or affect the States' ability to discharge traditional
State governmental functions. The Agencies invite 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.
Executive Order 13175 (Tribal Consultation)
The Agencies have analyzed this action under Executive Order 13175,
and believe that it would not have substantial direct effects on one or
more Indian tribes; would not impose substantial direct compliance
costs on Indian tribal governments; and would not preempt tribal law.
Therefore, a tribal summary impact statement is not required.
Executive Order 13211 (Energy Effects)
The Agencies have analyzed this action under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agencies have determined that this action is
not a significant energy action under that 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 DOT's regulations implementing Executive Order 12372 (49 CFR
part 17) apply to this program. Accordingly, the Agencies solicit
comments on this issue.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. The Agencies have determined
that this proposal 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), 91 FR 27534 (May 10, 2012) (available online at
www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm), 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 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,
FTA Policy Guidance for Federal Transit Recipients, 77 FR 42077 (July
17, 2012) (available online at www.fta.dot.gov/legislation_law/12349_14740.html).
The Agencies have evaluated this proposed rule under the Executive
Order, the DOT Order, the FHWA Order, and the FTA Circular. The
Agencies have determined that the proposed new CEs, if finalized, would
not cause disproportionately high and adverse human health and
environmental effects on minority or low income populations. This
action proposes to add 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 proposed 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 proposed by this rulemaking,
the Agencies would have an independent obligation to conduct an
evaluation of the proposed action under the applicable EJ orders and
guidance to determine whether the proposed action has the potential for
EJ effects. The rule would not affect the scope or outcome of that EJ
evaluation. In any instance where there are potential EJ effects and
the Agencies were to consider applying one of the CEs proposed by this
rulemaking, public outreach under the applicable EJ orders and guidance
would provide affected populations with the opportunity to raise any
concerns about those potential EJ effects. See DOT Order 5610.2(a),
FHWA Order 6640.23A, and FTA Policy Guidance for Transit Recipients
(available at links above). Indeed,
[[Page 57601]]
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 have
determined that no further EJ analysis is needed and no mitigation is
required in connection with the designation of the proposed CEs.
Executive Order 13045 (Protection of Children)
The Agencies have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. The Agencies certify that this action would not concern an
environmental risk to health or safety that may disproportionately
affect children.
Executive Order 12630 (Taking of Private Property)
The Agencies do not anticipate that this action would affect a
taking of private property or otherwise have taking implications under
Executive Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights.
National Environmental Policy Act
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 (40 CFR 1507.3(b)). 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 regulations for implementing NEPA.
The CEs are one part of those agency procedures, and therefore
establishing 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
requirements for establishing agency NEPA procedures are set forth at
40 CFR 1505.1 and 1507.3. 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 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 recordkeeping requirements.
49 CFR Part 622
Environmental impact statements, Grant programs--transportation,
Public transit, Recreation areas, Reporting and record keeping
requirements.
In consideration of the foregoing, the Agencies propose to amend
title 23, Code of Federal Regulations part 771, and title 49, Code of
Federal Regulations part 622, as follows:
Title 23--Highways
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; Pub. L. 109-59, 119 Stat. 1144, sections 6002 and
6010; Pub. L. 112-141, 126 Stat. 405, sections 1315, 1316, 1317, and
1318.
Sec. 771.117 [Amended]
0
2. Amend Sec. 771.117 by:
0
a. Adding new paragraphs (c)(24) thru (c)(30).
0
b. Revising the first sentence in paragraph (d); removing and reserving
paragraphs (d)(1), (d)(2), and (d)(3); and adding a new paragraph
(d)(13).
0
c. Redesignating paragraph (e) as paragraph (f) and adding new
paragraph (e).
0
d. Adding a new 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 parking, weaving, turning, and climbing) if it the
action meets the conditions 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 conditions 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 conditions 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 users. 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. * * *
(1) [Reserved]
(2) [Reserved]
(3) [Reserved]
* * * * *
[[Page 57602]]
(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28)
that do not meet the constraints in paragraph (e) of this section.
(e) Actions described in (c)(26), (c)(27), and (c)(28) may not be
processed as CEs under paragraph (c) of this section if they involve:
(1) An acquisition of more than a minor amount of right-of-way or
that would result in any commercial or 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 USACE
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 NHPA, 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 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 an existing
road, bridge, or ramps, that would result in major traffic disruptions
or substantial environmental impacts;
(5) Changes in access control; or
(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) Notwithstanding paragraph (d) of this section, 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.
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. The FHWA must take
into account the State DOT's performance when considering renewal of
the programmatic CE agreement;
(4) The agreement must include stipulations for amendment,
termination, and public availability of the agreement once it has been
executed; and
(5) Legal sufficiency and FHWA Headquarters review is required
prior to FHWA's approval of the agreement.
0
3. Amend Sec. 771.118 by adding new paragraphs (c)(14) thru (c)(16),
(d)(7), and (d)(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.
(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--Transportation
PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES
Subpart A--Environmental Procedures
0
4. The authority citation for subpart A of part 622 is revised to read
as follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303 and 5323; 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 12, 2013.
Victor M. Mendez,
Administrator, Federal Highway Administration.
Peter Rogoff,
Administrator, Federal Transit Administration.
[FR Doc. 2013-22675 Filed 9-18-13; 8:45 am]
BILLING CODE 4910-22-P