127.27 Guidelines for Obtaining Environmental Clearance for Off-Site Activities

This article provides guidelines for obtaining environmental clearance for off-site activities such as:

Borrow Sites		Haul Roads
Burn Pits		Staging Areas
Spoil Sites		and Quarries.

The necessary clearances for disturbed areas such as those referenced above shall be obtained prior to using these areas for projects. The contractor is encouraged to consider using material from previously disturbed locations (substantial disturbance) or disturbed areas that have previously been cleared, precluding the need to address most, if not all, of the issues described below. The contractor shall include the federal project number on all correspondence. Documentation of the completed determinations and any coordination is required to be submitted to the MoDOT Resident Engineer (RE) for all resources listed below. The transmittal letter must include county, route and job number of the project, along with a map depicting the location and limits of the site(s). For material coming from quarries, documentation that the quarry is approved and permitted by the Missouri Department of Natural Resources will be sufficient for approval (see MDNR map).

The following process addresses the primary environmental issues related to clearance of disturbed areas such as borrow sites, spoil sites, staging areas, etc.:

127.27.1 The Endangered Species Act

The Federal Endangered Species Act protects rare species and their habitats. The U.S. Fish and Wildlife Service (USFWS) administers the Act. Violations of this act can result in extensive project delays and severe fines. To determine if an activity will impact any rare species or their habitats, contact the Missouri Department of Conservation’s Policy and Coordination Section at (573) 751-4115 or obtain MDC MO Natural Heritage Review (NHR) online to obtain a query of the MDC Heritage Database. All queries must be accompanied by a good quality map illustrating the location of the proposed site with a description of the activity. Allow at least three weeks for a response to all requests if calling in person. If you receive a Level 1 response using the online tool, there are no known issues. If you receive a Level 2 or 3, you must contact MDC directly following the directions on the report. All report levels must be retained as documentation to be submitted.

An Information, Planning, and Conservation (IpaC) official species list from USFWS must also be obtained using their online tool. Assessments for all species on the IPaC official species list and the MDC NHR list must be completed. This assessment must include an effect determination for each federal and state species and justification for the determination made.

If there are no known records of rare species or sensitive habitats at the proposed site, and it is unlikely that any will be impacted by the activity, the contractor will be given clearance to proceed. However, if rare species are known or likely to occur at the site, or known critical habitat exists, further coordination with MDC and the USFWS will be necessary. Written clearance from the USFWS is required before the project can proceed.

Missouri Department of Conservation (MDC)

Planning Division

P.O. Box 180

Jefferson City MO 65102-0180

Telephone Number (573) 751-4115 or FAX (573) 751-4495

U.S. Fish and Wildlife Service (FWS)

Columbia Field Office

101 Park DeVille Drive - Suite A

Columbia, MO 65203-0007

Telephone Number (573) 234-2131 or Fax (573) 234-2182

Documentation of the completed determinations and any coordination is required to be submitted to the MoDOT RE.

127.27.2 Floodplain/Regulatory Floodway

An evaluation of floodplain impacts is mandated by Executive Order 11988, Floodplain Management, and subsequent federal floodplain management guidelines. When available, flood hazard boundary maps (National Flood Insurance Program) and flood insurance studies for the project area are used to determine the limits of the base (100-year) floodplain and the extent of encroachment.

The Federal Emergency Management Agency (FEMA) and Federal Highway Administration (FHWA) guidelines 23 CFR 650 have identified the base (100-year) flood as the flood having a one percent probability of being equaled or exceeded in any given year. The base floodplain is the area of 100-year flood hazard within a county or community. The regulatory floodway is the channel of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the 100-year flood discharge can be conveyed without increasing the base flood elevation more than a specified amount. FEMA has mandated that projects can cause no rise in the regulatory floodway, and a one-foot cumulative rise for all projects in the base (100-year) floodplain. For projects that involve the state of Missouri, the State Emergency Management Agency (SEMA) issues floodplain development permits. In the case of projects proposed within regulatory floodways, a "No-Rise" Certification, if applicable, should be obtained prior to issuance of a permit.

Questions regarding floodplain and regulatory floodway should be addressed to Floodplain Management Officer at:

SEMA

P.O. Box 116

Jefferson City MO

65102

(573) 526-9135

Documentation of consultation with SEMA regarding the presence of 100-year floodplain/regulatory floodway should be included in the final collection of information to be submitted to the MoDOT RE.

127.27.3 Federal Emergency Management Agency (FEMA) Buyout Lands

The Flood Disaster Protection Act of 1973, as amended by the Disaster Relief and Emergency Assistance Act of 1988 (The Stafford Act), identified the use of disaster relief funds under Section 404 for the Hazard Mitigation Grand Program (HMGP), including the acquisition and relocation of flood damaged property. The Volkmer Bill further expanded the use of HMGP funds under Section 404 to “buy out” flood damaged property, which had been affected by the Great Flood of 1993.

There are numerous restrictions on these FEMA buyout properties. No structures or improvements may be erected on these properties unless they are open on all sides. The site shall be used only for open space purposes, and shall stay in public ownership. These conditions and restrictions (among others), along with the right to enforce same, are deemed to be covenants running with the land in perpetuity and are binding on subsequent successors, grantees, or assigns. Any decision involving these properties should take into consideration that 2-3 years is necessary to process an exemption from FEMA to utilize this parcel. This exemption would likely be a permanent easement rather than a transfer of property. If any proposed site is located on a FEMA buyout property, an alternative site should be chosen.

127.27.4 Farmland Protection

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In order to comply with the Farmland Protection Policy Act, which has the purpose of minimizing Federal programs' contributions to the unnecessary and irreversible conversion of farmland caused by nonagricultural uses, the Form AD-1006 will need to be completed. This can be accomplished through coordination with United States Department of Agricultural (USDA)-Natural Resources Conservation Service (NRCS), and the completion of Form AD-1006. To receive the Form AD-1006, call the NRCS State office in Columbia at (573) 876-9411. An aerial map of the site or sites will also be required with the area to be disturbed identified on the map. This aerial map can be obtained from the local SCS office. In some areas of the state this office may be located in an adjoining county.

The contractor will need to complete Parts I and III of Form AD-1006. The form should then be sent to the NRCS State Office for completion of Parts II, IV and V. The address for NRCS State Office is:

Mr. Jorge Lugo-Camacho

State Soil Scientist

Natural Resource Conservation Service

601 Business Loop 70 West

Parkade Center, Suite 250

Columbia, MO 65203

1-573-876-9359

After the NRCS office returns the form, the contractor will complete remaining Parts VI and VII. The contractor will provide a copy of the completed form to the MoDOT district contact to document compliance with the Farmland Protection Policy Act.

127.27.5 Wetlands and Streams

Projects that involve stream crossing(s) and/or impacts to wetlands under the jurisdiction of the U.S. Army Corps of Engineers (COE) require a Section 404 Permit or written confirmation that impacts will not trigger submittal of a Section 404 permit application. A Section 404 permit may be required for fill in any water body (waters of the U.S.)—lakes, ponds, streams, rivers, and wetlands. The COE will make a final determination as to the extent of its jurisdiction and the appropriate permit(s) for all regulated activities. If the proposed action impacts a wetland, a determination must be made that there is no practicable alternative to the wetland impact or floodplain encroachment.

Federal executive order has decreed a national policy of "no net loss of wetlands." Under this policy, impacts to wetlands must be avoided if at all practical. Where wetlands are impacted, these impacts must be mitigated by construction or enhancement of a like quantity and quality of new wetlands. For these reasons, avoiding impacts to wetlands is a primary goal.

To determine whether wetlands occur, contact the USDA-NRCS and the COE. The NRCS has identified and mapped wetlands as a requirement under the Food Security Act. These maps are available from county NRCS offices, usually located in the county seat. In addition to contacting NRCS consulting the US Fish and Wildlife Service's Wetlands Map will also be needed. If there are no mapped wetlands or evidence of wetlands in the field, no further action is required but still must be documented and provided to the RE. If wetlands are identified from any source, a site visit may be needed to confirm the presence and/or location of wetlands.

If wetlands are present and cannot be avoided, a COE Section 404 permit will need to be processed through the appropriate COE district. There are five COE districts in Missouri. Information about COE district locations, addresses and phone numbers is available on the COE website.

127.27.6 Water Quality/Land Disturbance

The Clean Water Act (CWA) National Pollutant Discharge Elimination Systems (NPDES) program regulates construction activities where one-acre or more of land is disturbed, and for some activities less than one-acre when part of a common plan of development. It is the obligation of the Owner/Operator of the construction activity to obtain permit coverage under NPDES. Project locations where MoDOT is the Owner/Operator are covered under Missouri State Operating Permit number MO-0137910. Any area outside of a project’s Permitted Site, as defined by permit MO-137910 and the sites project specific stormwater pollution prevention plan (SWPPP), shall obtain permit coverage from Missouri Department of Natural Resources (DNR). Permit coverage may be required for off-site activities even if the activity is less than one-acre. Any activity that is considered a support activity to the Permitted Site will require separate NPDES permit coverage under the common plan clause if the sum of the disturbance areas of the off-site activity and MoDOT’s Permitted Site equal one-acre or more. Owner/Operators of off-site activities shall contact the Missouri Department of Natural Resources (DNR) NPDES Storm Water Program office at (573) 751-1300 or (800) 361-4827 for further directions.

MoDOT’s permit is non-transferable. Usage of MoDOT’s permit by any LPA regardless if it is completely on MoDOT right-of-way is not allowed unless MoDOT is acting as the Owner/Operator of the project site. A few cities (Kansas City, Columbia, and others) and counties have obtained their own land disturbance permits from DNR for generic land disturbance purposes; see additional discussion on stormwater and erosion control in EPG 136.6 Environmental and Cultural Requirements of the LPA Policy.

127.27.7 Hazardous Waste Sites

More than likely, areas to be disturbed will be located in rural areas that have been used for agriculture or similar purposes. Hazardous wastes are most typically associated with commercial or previous industrial properties.

If the proposed area is primarily farmland or pasture, and has not been used for any commercial activity or dumping, hazardous wastes are unlikely. The contractor should simply document the existing and historic land use of the parcel and tell how this assessment was obtained.

In non-rural, suburban or commercial areas a nonintrusive investigation may be used to "diagnose" the environmental conditions of a selected site. The following is a list of suggested items, but not inclusive, for a cursory nonintrusive investigation.

• Examine any noticeable contamination in the form of surface staining, oil sheen, odors, stressed vegetation, spills, leaks, illegal dumping, etc.

• Conduct interviews of local citizens and current owners to identify past land use practices and hazardous waste management practices.

• Consult with local and state (Missouri Department of Natural Resources, Hazardous Waste Program, 573-751-3176) environmental regulatory agencies to identify if any past problems (complaints, citations, etc.) have occurred at the site, if any permits/licenses have been filed for the site, or if enforcement actions have occurred.

If the above analyses produce negative results, the contractor should provide documentation to the MoDOT RE as to who was contacted and the results of the contact. However, if through the search for information described above, potential problems are identified, it would be beneficial to locate another site. If another site is not feasible, the MoDOT RE shall contact MoDOT Environmental and Historic Preservation office to determine the best course of action. Proper coordination will be necessary and the potential for mitigation of the site before use may be likely.

The potential to encounter wastes from sites that are unknown should always be a consideration. Any unknown sites that are found will be handled in accordance with Federal and State Laws and Regulations.

127.27.8 Historic Preservation

All jobs requiring environmental clearance for historic preservation (archaeological sites, buildings, and structures) must be reviewed and concurred with by the State Historic Preservation office (SHPO), Department of Natural Resources. To initiate SHPO's review and clearance of a proposed site for cultural resources, a "Section 106 Project Information Form" must be completed and submitted to SHPO along with a copy of a United States Geological Survey (USGS) topographic map indicating the location of the project. In addition, photographs of any structures that will be impacted must be provided. The "Section 106 Project Information Form" can be obtained from the SHPO website or requested from the SHPO by telephone, (573) 751-7858, or mail:

Missouri Department of Natural Resources

State Historic Preservation Office

Attn: Section 106 Review

P.O. Box 176

Jefferson City, MO, 65102-0176

Based on the information supplied, SHPO may clear the project at that time or request that the contractor acquire the services of an archaeological consultant to conduct a historic preservation survey of the proposed area. A listing of currently acceptable and available archaeological consultants who can complete a survey if required can be viewed at the SHPO’s website. Any questions can be directed to the Design Division-Historic Preservation Section, at (573) 526-3593.

MoDOT’s Historic Preservation section must be contacted for any land disturbance activities (e.g., borrow, spoil, staging, etc.) proposed in MoDOT right-of-way outside of the project footprint to determine how the clearance for those activities will need to be obtained.

127.27.9 Public Land

If borrow sites, staging areas or any other project related activities are proposed on any publicly owned land, contact the before proceeding. The MoDOT RE shall reach out to the MoDOT Environmental and Historic Preservation office for additional oversight. Section 4(f) of the Department of Transportation Act of 1966 (now codified as 49 U.S.C. 303 and 23 U.S.C. 138) protects certain public lands.

Section 4(f) requires that before a US DOT-funded project can “use” a publicly owned park, recreation area or wildlife or waterfowl refuge or historic site, the US DOT agency must first determine that there are no feasible and prudent avoidance alternatives and that the action includes all possible planning to minimize harm to the property resulting from the use; OR that the use is de minimis (minor).

It is strongly recommended that public lands not be considered as potential borrow sites, staging areas or any other impacted locations not previously cleared.

Once the contractor has obtained all of the above information, it should be provided to the MoDOT RE.