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127.14 National Environmental Policy Act (NEPA) Classification and Documents

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Revision as of 12:02, 24 September 2021 by Smithk (talk | contribs) (→‎127.14.3.1 Categorical Exclusion: Per Env'l, updated PCE agreement with FHWA)
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Figures
FHWA/MoDOT Environmental Partnering Agreement
NEPA Process Flow Chart
NEPA Process "Documentation Timeline"
Forms
Categorical Exclusion (CE) Form

127.14.1 Overview

The National Environmental Policy Act (NEPA) requires consideration of the human and natural environment in decisions made for any project that uses federal funding, has a federal nexus or requires federal permits. Click here for more information about the NEPA process. To fulfill NEPA requirements, MoDOT must assess the impacts of the project on the human and natural environment to document the decision making process while aiding in the selection of a preferred alternative. Pursuant to MoDOT’s values and tangible result of using resources wisely, MoDOT’s Design Division's Environmental and Historic Preservation staff review every project and coordinate as appropriate with the Federal Highway Administration (FHWA) to determine the appropriate environmental classification of NEPA documentation for a project as soon as the scope and location are determined. MoDOT and FHWA have a programmatic agreement regarding the processing of actions classified as categorical exclusions for Federal-Aid projects (referred to as PCE agreement).

The basic NEPA classifications are:

  • Categorical Exclusion (CE) – has no significant impact on the human and natural environment.
  • Environmental Assessment (EA) – determines the need for an EIS if environmental impacts are uncertain or finds that there is no significant impact on the human and natural environment.
  • Environmental Impact Statement (EIS) – detailed documentation where the action is likely to cause significant impacts or significant impacts are known (23 CFR 771.115) on the environment and results in a record of decision.

The environmental classification is based on the scope of the project (including the programming information provided in the Statewide Transportation Improvement Program (STIP)), the assessment of the anticipated social and environmental impacts of the project, and possible impacts provided by the district and the environmental and historic preservation staff. The extent of the NEPA analysis required for a particular project depends on the expected magnitude of the impacts from that project. The significance of a project is assessed on a case-by-case basis, based on its context and intensity. The context of a project involves analyzing “society as a whole, the affected region, the affected interests, and the locality.” Intensity refers to the severity or degree of a project’s impact. For example, the severity of a project can become greater if there are cumulative impacts, which is the incremental impact of the action, to include past, present, and future developments. In some cases, several minor projects can collectively be significant.

Logical termini and independent utility are also evaluated for projects that may be located in close proximity. Independent utility is determined if a project can be constructed absent of the construction of other projects in the project area. Logical termini are rational endpoints for both a transportation improvement and a review of the environmental impacts of a sufficient length to address matters on a broad scope. A project manager initiates the NEPA classification process by preparing and submitting a Request for Environmental Services (RES) to the Design Division’s Environmental and Historic Preservation Section.

127.14.2 Laws, Regulations, and Guidance

MoDOT must comply with numerous environmental laws and regulations when planning, designing, constructing, and maintaining transportation projects. As the “umbrella” for that compliance, NEPA requires interpreting and administering, the policies, regulations, and laws of the federal government in accordance with its environmental protection goals. While the NEPA document is intended to address compliance or to establish a plan for compliance for federal and state laws and regulations, additional compliance issues will likely remain post-NEPA. However, the synchronization of environmental reviews and authorizations is preferred, as it is known to improve the efficiency and effectiveness of project delivery. MoDOT must be able to provide FHWA reasonable assurance that those outstanding compliance issues will be resolved. In many instances, compliance is not fully attained until mitigation plans have been approved and executed. For example, MoDOT may still need to obtain a floodplain development permit. If all environmental clearances are not obtained by FHWA authorization, a conditional statement must be provided to FHWA regarding when the clearance will be obtained. The conditional statement must also commit to a result if the clearance is not obtained.

Other articles on community impact assessment, threatened and endangered species, wetlands, streams and water quality, wetland and stream mitigation, floodplain management and the regulatory floodway, farmland, hazardous and solid waste, noise, air quality, Federal Emergency Management Agency (FEMA) buyout properties, Historic Preservation and Cultural Resources and Section 4(f) public lands describe various processes and reference the laws and regulations pertaining to the subject of the article.

127.14.3 Process

Design environmental and historic preservation staff oversee in-house and consultant prepared environmental documentation. Project managers and other district staff are closely involved in the preparation and review of documents. Environmental documentation must meet the requirements of FHWA and other regulatory agencies, while providing the public with a record of the deliberative process for identifying project alternatives and impacts. The environmental document addresses comments made by other agencies and the public. Environmental and historic preservation staff review the document before it leaves MoDOT to ensure it meets FHWA regulations. The documents and procedures also must comply with MoDOT and the Missouri Highways and Transportation Commission (MHTC) requirements.

Assurance of federal funding is contingent upon MoDOT not proceeding with detailed design (beyond preliminary plans) on any project until the NEPA process is concluded, resulting in a CE, Finding of No Significant Impact (FONSI), or Record of Decision (ROD). The MHTC must approve a location, which occurs after FHWA approves a ROD or FONSI, respectively, before detailed design proceeds on EIS or EA projects. NEPA approval cannot be granted until planning requirements are met, which is the next phase to be programmed in the STIP and TIP (if in an MPO area) and the whole project must be in the long range plan.

The FHWA may require CEs or EAs to be elevated to a higher NEPA documentation level, if it is determined that the project scope, level of controversy over environmental data, or degree of impacts requires such elevation. Reclassification as an EA or EIS will require substantially more time for project development and ultimate location approval. The NEPA class can also be down-graded, if justified.

NEPA documents have a limited shelf life. When a NEPA document needs to be updated, MoDOT’s Design Division's Environmental staff conducts a reevaluation and prepares documentation. For PCEs, the reevaluation is outlined in MoDOT and FHWA’s programmatic agreement for PCEs and must still be documented. Factors that can create the need to reevaluate a NEPA document include the age of the document, whether the project is active or inactive, noteworthy changes in the scope, impacts, or circumstances when advancing to the next major federal approval, and/or location of the project (including those that arise from value engineering proposals), before requests for funding authorizations from FHWA, and changes in environmental laws or regulations. In most cases, the reevaluation is submitted to the FHWA for review and approval, however, for PCEs, MoDOT and FHWA follow the Programmatic Agreement to document reevaluations.

Additionally, it is important to identify (during environmental reviews) and also incorporate (during design and construction) any commitments and/or mitigation measures for the project. These are typically identified collectively in the NEPA document. If commitments are not carried out, federal funding can be jeopardized.

127.14.3.1 Categorical Exclusion

For actions that will not individually or cumulatively have significant social, economic, or environmental impacts, certain categories of projects are excluded from the need to prepare a formal NEPA document (EIS or EA). However, this does not exclude the need to demonstrate compliance with all other environmental laws and regulations. Hence, they still need Section 106 clearance, Threatened & Endangered Species concurrence, etc. reviews and coordination regardless of the NEPA class (including regardless of PCEs or CE2s). Additionally, any actions which normally would be classified as a CE but could involve unusual circumstances may require additional studies to determine if CE is the appropriate class. These unusual circumstances could include significant impacts, controversy, etc.

MoDOT processes CEs in two ways: as a programmatic CE (PCE) or a documented CE (CE2).

Programmatic CE (PCE)
FHWA and MoDOT executed a programmatic agreement on September 22, 2021 (PCE Agreement), that allows MoDOT environmental staff to approve certain types of projects as PCEs. The amount of new right of way and/or easements combined must be less than five acres for the project to qualify as a programmatic PCE. There is a list of thresholds within the agreement that cannot be exceeded. If a project exceeds one of the thresholds, a documented Categorical Exclusion (CE2) must be approved by the Missouri Federal Highway Administration Division Administrator or the representative of the Missouri Federal Highway Administration Division Administrator. Definitions related to thresholds in the PCE agreement can be found in EPG 127.14.5 NEPA Glossary. There are 39 types of eligible projects included within the agreement that are categorically excluded from the formal documentation requirements of NEPA per CFR 771. The programmatic agreement allows FHWA to use a risk-based approach to monitor and evaluate MoDOT’s environmental project files to ensure compliance with the programmatic agreement. Quarterly, MoDOT sends FHWA a list of projects that were determined to meet the criteria for PCEs.

Process and Timeframes

A PCE approval is given after environmental and historic preservation staff review the RES submitted by the district and all clearance are complete except for unusual circumstances. In most cases, the PCE can be approved between Preliminary Plans stage and Right of Way stage. At the discretion of the Environmental Compliance Manager, project-specific coordination with FHWA may be conducted to determine if a project fits under the programmatic agreement.


CE2
For actions that will not individually or cumulatively involve significant social, economic, or environmental impacts, and do not meet the criteria for a PCE, environmental staff prepare a CE2 describing the proposed action, impacts that will result from the action, mitigation measures that will be used to compensate for expected impacts, and commitments that are carried through the design and construction. The district will provide project specific information such as job number, route, county, project termini and length, project description, current and future annual average daily traffic (AADT), right-of-way needs and displacements, and a location. FHWA may approve the CE2, request more information, or indicate that an EA or EIS needs to be prepared.

Process and Timeframes

The environmental staff typically prepare CE2 documentation, but a consultant may occasionally prepare and submit the documentation to MoDOT for review before it is forwarded to FHWA.

After preparation of the CE2 FHWA has 4 weeks to approve or request more information.

127.14.3.2 Environmental Assessment

An EA is prepared when there is uncertainty about the significance of a project’s impacts. The district should submit an RES at least two (2) years before detailed design is expected to begin. At the very least, the (RES) should be submitted early enough during project development to ensure that NEPA compliance can be achieved before the preliminary plans approval stage.

The districts’ primary responsibility for creating an in-house environmental document is to prepare and submit a Location Study, which consists of the Purpose and Need and an Alternative Analysis, to the Design Division to be incorporated into the EA. For a consultant prepared EA, the district oversees the selection of the consultant and preparation of the scope of work. The environmental and historic preservation staff will assist in this process.

The first step in completing the EA is to develop a schedule of process milestones. An interdisciplinary team should be assembled that includes MoDOT environmental/historic preservation, district, and central office staff, and FHWA. This team meets several times throughout the EA process to make decisions and ensure project milestones are met. These milestones include key components of the document’s structure. The structure of the document will include the following items:

  • Cover Page – Includes the title of the document, DOT Job Number(s), Federal Aid Number, Cooperating and Lead agency (ies), and Date.
  • Title Page – Includes MoDOT and FHWA approval signatures.
  • Purpose and Need – The reason the action is being proposed and what is expected to be achieved.
  • Reasonable Alternatives – Consideration of a reasonable range of alternatives that can accomplish the purpose and need.
  • Environmental Impacts and Consequences – Describes the environment of the area and the direct, indirect, and cumulative effects of the alternatives under consideration. Direct effects are caused by the action and occur at the same time and place. Indirect effects are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Cumulative effects result from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of the agency (Federal or non-Federal) or person undertaking other such actions.
  • A list of all Environmental Commitments
  • Public and Agency Involvement-Documents public meetings, agency correspondence, and comments received and how they were addressed.
  • Appendices-Supporting materials that provide more information and substantiate conclusions on issues discussed in the document.

The EA must examine all topics required by FHWA regulations and guidance but should discuss in detail only those areas where there is potential for a significant impact. If a significant impact is identified at any time during the preparation of an EA, an EIS must be prepared. Some projects may have mitigated or reduced significant impacts to a level where they are no longer considered significant and therefore, do not require an EIS.

MoDOT and FHWA as lead agencies will prepare a public and agency coordination plan. The coordination plan should outline (1) how the lead agencies have divided the responsibilities for compliance with the various aspects of the environmental review process, such as the issuance of invitations to participating agencies, and (2) how the lead agencies will provide the opportunities for input from the public and other agencies, in accordance with applicable laws, regulations, and policies. The plan also should identify coordination points, such as:

  • Scoping activities.
  • Development of purpose and need.
  • Identification of the range of alternatives.
  • Collaboration on methodologies.
  • Identification of the preferred alternative and the level of design detail.
  • Completion of the EA.
  • Completion of the Finding of No Significant Impact (FONSI).

In addition, the coordination plan may establish a schedule of regular meetings and may identify which persons, organizations, or agencies should be included for each coordination point. The plan may set timeframes for input by those persons, organizations, and agencies.

Coordination begins via an interagency scoping process with interested regulatory agencies and others to present the scope of the project. This scoping process assists in determining if aspects of the proposed action have potential for social, economic, and/or environmental impact and identify other environmental review and consultation requirements that will be performed concurrently with the EA. A record is kept of all contacts with agencies and the public, as the EA must summarize the results of both agency consultation and public involvement, including substantive comments received and how those comments were or will be addressed. NEPA requires FHWA to invite federal agencies with jurisdiction by law or with special expertise relative to specific resource impacts associated with a proposed project or project alternative, such as the U.S. Army Corps of Engineers (COE) and the U.S. Fish and Wildlife Service (FWS), to become cooperating agencies. The cooperating agency(ies) are indicated on the EA’s cover page.

MoDOT also works with FHWA during the NEPA process to initiate consultation with federally recognized American Indian tribes determined to have an interest in the project area. FHWA conducts consultation on a government-to-government basis, determines which tribes are to be contacted (as recommended by MoDOT), and sends the letters. MoDOT or its consultant does not contact the tribes, but prepares a draft letter for FHWA’s use. The consultation informs the tribes of the project, asks whether they have any specific concerns, and inquires whether they want to continue to consult on the project.

A pre-location meeting is held prior to NEPA document preparation for all projects classified as EAs (see EPG 129 Public Involvement). MoDOT, or a consultant, will then prepare a preliminary EA (pEA), i.e., an EA that has not yet been through initial internal and FHWA review.

A pEA requires the following work items:

  • Develop the purpose and need and alternatives analysis taken from the Location Study. All alternatives considered, including those discarded, must be depicted graphically.
  • Evaluate all proposed alternatives equally to determine which are reasonable and meets purpose and need; the EA must include at least one build alternative and the no-build alternative. Additionally, it must be documented why alternatives are discarded or dismissed. In the event the preferred alternative is not selected, the reasonable alternatives can be further evaluated and considered for the selected alternative.
  • Identify the preferred alternative.

The reasonable alternatives must evaluate the following resources for direct, indirect, and cumulative impacts:

- traffic/access
- acquisitions/relocations
- public involvement
- demographics
- community facilities
  • Water Quality
  • Land Use/Zoning
  • Construction Impacts
  • and others as appropriate for each project.

The pEA is circulated within MoDOT to be reviewed by the liaison engineer, environmental and historic preservation staff, potentially bridge, and district personnel for content, readability, and logical decisions. Central office environmental staff or consultant reviews all comments and prepares a revised pEA. The revised pEA must include a draft Section 4(f) evaluation if applicable. MoDOT environmental staff then sends the pEA to the FHWA and cooperating agencies for review and comment. This document is not to be distributed to anyone outside of MoDOT except formal cooperating agencies identified as such on the pEA cover page Should FHWA determine after reviewing the documentation the project will have significant impacts, the classification of an EA is no longer appropriate and an Environmental Impact Statement (EIS) must be prepared.

After all comments on the pEA have been addressed, the EA is ready for MoDOT senior management’s approval and signature. Central office environmental staff assists the district in scheduling and preparing a project briefing for the Chief and Assistant Chief Engineers, State Design Engineer, and Design Liaison Engineer. If management is in agreement with the conclusions in the document and commitments, the document is signed. After MoDOT has signed the EA, it is submitted to FHWA for signature. Once FHWA signs the EA, the district holds a location public hearing (see EPG 129 Public Involvement) and prepares the transcript for submittal to the Design Division.

Public notice of the EA’s availability for public inspection and where it may be obtained or reviewed is included in the advertisement of the location public hearing in accordance with MoDOT’s Public Involvement Plan (EPG 129 Public Involvement). District staff should work with MoDOT’s Environmental and Historic Preservation Section and FHWA in development of the public hearing materials. It is important to avoid predecisional language in any of those materials. The approved EA is made available for review and photocopying at the district office and must also be available for public review at the hearing. MoDOT must also send notice of the availability of the EA, briefly describing the action and its impacts, to affected units of federal, state, and local government as well as to Missouri Federal Assistance Clearinghouse, the state intergovernmental review contact established under Executive Order 12372. To satisfy federal regulation regarding availability of the EA and timeframe for submitting comments, MoDOT must publish the notice of public hearing and EA availability a minimum of 21 calendar days prior to the date of the hearing and the notice should also include a statement that written comments will be accepted until a date 10 days after the hearing unless FHWA determines, for good cause, that a different period is warranted.

The EA process results in either a FONSI, or a determination the action is likely to result in significant impacts, and therefore an EIS must be prepared. According to our Public Involvement Plan, MoDOT will make the document available 15 days prior to the hearing, and publish a notice of availability. The document is available for comment 30 days after the notice of availability.

Once the 30-day public comment period has ended and all comments from the public and other agencies have been collected, a cover letter and the FONSI are prepared. The FONSI must satisfactorily address all substantive comments on the EA gathered during the 30-day comment period, including those from other agencies, the general public, and as a result of the location public hearing. To ensure this, the location public hearing transcript must have been previously submitted to the Design Division (see EPG 129 Public Involvement) and also to FHWA for review.

The FONSI must describe any changes to the EA-designated preferred alternative and document any additional impact analyses performed for the final, selected alternate. The FONSI must also document compliance with all applicable environmental laws and Executive Orders or provide reasonable assurance that their requirements can be met and briefly present why the action does not have a significant impact. If the proposed project will adversely impact any NRHP-eligible sites or historical structures, a Memorandum of Agreement (MOA) or a Programmatic Agreement (PA) executed by the Missouri Department of Natural Resources-State Historic Preservation Officer (MDNR-SHPO), FHWA, Advisory Council on Historic Preservation (ACHP), and MoDOT must accompany the FONSI (See EPG 127.2 Historic Preservation and Cultural Resources). The MOA or PA will identify mitigation or activities to be completed prior to project construction. If the project will impact prehistoric sites known or likely to contain human remains, the MOA will also be provided to appropriate American Indian tribes with cultural interest in the region for review and comment. Accompanying documentation must also include the Final Section 4(f) Evaluation, when required, for any impacted historic structures and/or for parklands, wildlife refuges, or other public lands affected.

When the FONSI is completed a cover letter, supporting documentation, an MOA execution, if necessary, and any additional environmental impact analyses including a list of all commitments for design and construction, is incorporated into the FONSI prior to submittal to FHWA for approval. If the Selected Alternative differs from the EA-designated preferred alternative, the FONSI must also be submitted to cooperating agencies for their review and comment.

FHWA will review the FONSI, accompanying documentation, and any public hearing comments and other comments received regarding the EA. If it is determined there are no significant impacts associated with the project, the FONSI will be signed and the MHTC can then approve the location of the project. MoDOT must send a notice of availability of the FONSI to affected units of federal, state, and local government and the document is made available upon request by the public. Notice is also sent to Missouri Federal Assistance Clearinghouse, the state intergovernmental review contact established under Executive Order 12372. Once the MHTC has approved the location, MoDOT can begin detailed design of the project. A flow chart showing this process in detail is available.

127.14.3.2.jpg


Timeframes

MoDOT’s Environmental staff or a consultant can prepare an EA. The project schedule should allow approximately 2 years for obtaining a FONSI. Details of the EA process requirements are shown on the NEPA Document Timeline flowchart.

127.14.3.3 Environmental Impact Statement

An EIS is required for projects that have significant social, economic, and environmental impacts. It includes procedures to minimize harm and details mitigation measures and environmental commitments. For an EIS the district should submit an RES at least three (3) years before detailed design is expected to begin. At the very least, the RES should be submitted early during project development to ensure that NEPA compliance can be achieved before the preliminary plans approval stage. Executive Order 13807 implemented One Federal Decision, an MOU, between certain Federal agencies, including FHWA, establishing a process and timeline for processing environmental review and authorization decisions for proposed major infrastructure projects. For more details on the framework established, see https://www.environment.fhwa.dot.gov/nepa/oneFederal_decision.aspx.

The districts’ primary responsibility for creating an in-house environmental document is to prepare and submit a Location Study, which consists of the Purpose and Need and an Alternatives Analysis, to the Design Division to be incorporated into the EIS. For a consultant prepared EIS, the district oversees the selection of the consultant and preparation of the scope of work. The environmental and historic preservation staff will assist in this process.

The first step in completing the EIS is to develop a schedule of process milestones. An interdisciplinary team should be assembled that includes MoDOT environmental/historic preservation, district, central office staff, and FHWA. This team meets several times throughout the EIS process to make decisions and ensure project milestones are met. These milestones include key components of the document’s structure. The structure of the document will include the following items:

  • Cover Page – Includes the title of the document, DOT Job Number(s), Federal Aid Number, Cooperating and Lead agency(ies), and Date.
  • Title Page – Includes MoDOT and FHWA approval signatures.
  • Purpose and Need – The reason the action is being proposed and what is expected to be achieved.
  • Reasonable Alternatives – Consideration of a reasonable range of alternatives that can accomplish the purpose and need.
  • Environmental Impacts and Consequences – Describes the environment of the area and the direct, indirect, and cumulative effects of the alternatives under consideration. Direct effects are caused by the action and occur at the same time and place. Indirect effects are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Cumulative effects result from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of the agency (Federal or non-Federal) or person undertaking other such actions.
  • A list of all environmental commitments
  • Public and Agency Involvement – Documents public meetings, agency correspondence, and comments received and how they are being addressed.
  • Appendices – Supporting materials that provide more information and substantiate conclusions on issues discussed in the document.

MoDOT and FHWA as lead agencies will prepare a public and agency coordination plan. The coordination plan should outline: 1) how the lead agencies have divided the responsibilities for compliance with the various aspects of the environmental review process, such as the issuance of invitations to participating agencies, and 2) how the lead agencies will provide the opportunities for input from the public and other agencies, in accordance with applicable laws, regulations, and policies. The plan also should identify coordination points, such as:

  • Notice of intent publication and scoping activities.
  • Development of purpose and need.
  • Identification of the range of alternatives.
  • Collaboration on methodologies.
  • Completion of the DEIS.
  • Identification of the preferred alternative and the level of design detail.
  • Completion of the final environmental impact statement (FEIS).
  • Completion of the ROD or combined ROD/FEIS.

In addition, the coordination plan may establish a schedule of regular meetings and may identify which persons, organizations, or agencies should be included for each coordination point. The plan may set timeframes for input by those persons, organizations, and agencies.

Coordination begins via an interagency scoping process with interested regulatory agencies and others to present the scope of the project. The scoping process assists in determining if aspects of the proposed action have potential for social, economic, and/or environmental impact and identify other environmental review and consultation requirements that will be performed concurrently with the EIS. NEPA requires FHWA to invite federal agencies with jurisdiction by law or with special expertise relative to specific resource impacts associated with a proposed project or project alternative, such as the COE and the U.S. Fish and Wildlife Service (FWS), to become cooperating agencies. These agencies may be asked to develop information and prepare environmental analysis including portions of the EIS.

The cooperating agency(ies) are indicated on the EIS’s cover page. The lead agency may also invite federal, state, tribal, regional, and local government agencies that may have an interest in the project to be participating agencies. These agencies have the opportunity to comment on the purpose and need and range of alternatives for the project. MoDOT collaborates with FHWA in deciding which agencies should be invited to participate as either cooperating or participating agencies or both. A record is kept of all contacts with agencies and the public, as the EIS must summarize the results of both agency consultation and public involvement.

MoDOT also works with FHWA to initiate consultation with federally recognized American Indian tribes determined to have an interest in the project area. FHWA conducts consultation on a government-to-government basis, and MoDOt recommends to FHWA which tribes are to be contacted, and sending the letters; MoDOT or its consultant does not contact the tribes but prepares a draft letter for FHWA to send to the tribes. The consultation letter informs the tribes of the project, asks whether they have any specific concerns, and inquires whether they want to continue to consult on the project.

A prelocation meeting is held prior to NEPA document preparation for all projects classified as EISs (see EPG 129 Public Involvement). It is important that MoDOT Enviornmental and FHWA work with the district to develop public meeting material in order to avoid any predecisional language. SAFETEA-LU specifically requires agency and public involvement in the development of the purpose and need for a project and in the determination of the range of alternatives to be considered.

MoDOT, or a consultant, will then prepare a preliminary Draft EIS (pDEIS) that requires the following work items:

  • Develop the purpose and need and alternatives analysis taken from the Location Study. All alternatives considered, including those discarded, must be depicted graphically
  • Evaluate all proposed alternatives equally to determine which are reasonable. Through evaluation of the reasonable alternatives and public and agency input, a preferred alternative is identified. In the event the preferred alternative is not selected, the reasonable alternatives can be further analyzed and considered for the selected alternative. SAFETEA-LU provisions allow MoDOT and FHWA to decide whether to develop the preferred alternative to a higher level of design detail for mitigation purposes or to facilitate compliance with other laws. FHWA’s SAFETEA-LU ENVIRONMENTAL REVIEW PROCESS FINAL GUIDANCE, Publication L 109-59, November 15, 2006, addresses the timing and information needed to make that decision. The lead agencies must agree on the preferred alternative before proceeding beyond preliminary design of the alternative. MoDOT and FHWA can consider on a case-by-case basis whether such higher level of detail is warranted.

The reasonable alternatives must evaluate the following resources:

- traffic/access
- acquisitions/relocations
- public involvement
- demographics
- community facilities
  • Water Quality
  • Land Use/Zoning
  • Construction Impacts
  • and others as appropriate for each project.

The pDEIS is circulated within MoDOT for review by central office design staff and district personnel. Central office environmental staff reviews all comments and a revised pDEIS is prepared. MoDOT senior management must be briefed on the project and the pDEIS. Central office environmental staff or a consultant can assist the district in scheduling and preparing for the project briefing. MoDOT environmental staff then sends the pDEIS to FHWA and cooperating agencies for review and comment. This document is not to be distributed to anyone outside of MoDOT except formal cooperating agencies identified on the pDEIS cover sheet.

After the FHWA and cooperating agency(ies) comments on the pDEIS have been addressed, the DEIS is ready for FHWA’s final review. Once the DEIS is signed by FHWA, it is circulated to federal and state agencies, local entities, elected officials, and others as appropriate for their review and comment. The district also provides copies of the approved DEIS for public viewing and copying in the district office and other public repositories such as libraries and city offices. Upon circulation of the approved DEIS to the Environmental Protection Agency (EPA), the EPA publishes a Notice of Availability (NOA) in the Federal Register. That publication initiates a 45-day comment period. During this period the district holds a location public hearing after 21 days of notice, (see EPG 129 Public Involvement), and prepares the transcript for submittal to the Design Division. The transcript must be available for review by the Design Division and FHWA prior to preparation of the preliminary Final EIS (pFEIS) so that substantive comments can be addressed in the pFEIS.

Once the 45-day comment period has ended and all comments from the public and other agencies have been collected, a pFEIS is prepared. The following items of work must be completed as part of the pFEIS:

  • Discuss all substantive comments received on the DEIS during the 45-day comment period, including those from other agencies, the general public, and as a result of the location public hearing and responses thereto, must be satisfactorily addressed.
  • Summarize public involvement.
  • Describe any mitigation measures that are to be incorporated into the proposed action.
  • A preferred alternative must be declared and evaluate all reasonable alternatives considered.
  • Document compliance, to the extent possible, with all applicable environmental laws and Executive Orders or provide reasonable assurance that their requirements can be met.

When these work items and internal review are completed, MoDOT circulates the pFEIS to FHWA and cooperating agencies for review and comment. Once comments are received, the pFEIS is revised and MoDOT submits the Final Environmental Impact Statement (FEIS) to FHWA for legal sufficiency review and approval. Once approved, EPA publishes a Notice of Availability (NOA) in the Federal Register initiating a 30-day comment period for the public, agencies, and tribes. The FEIS shall be transmitted to any persons, organizations, or agencies that made substantive comments on the draft EIS or requested a copy, no later than the time the document is filed with EPA. MoDOT will also publish a notice of availability in local newspapers and make the final EIS available at appropriate Administration offices and institutions such as local government offices, libraries, and schools, as appropriate (23 cfr 771.125(g)).

Substantive comments on the FEIS are addressed in a Record of Decision (ROD). The ROD also discusses the reasonable alternatives that were considered for the project, identifies the selected alternative, and discusses why this alternative was selected. The ROD discusses commitments made in the document, including the measures that have been adopted to minimize harm, such as mitigation plans, and details any monitoring and enforcement program, if applicable. Once comments are satisfactorily addressed, the ROD is presented to FHWA for approval. After FHWA signs the ROD, the Missouri Highway Transportation Commission (MHTC) can approve the location of the project and detailed design can begin. The process is shown on the following flow chart.

127.14.3.2.jpg


Combining the FEIS and ROD

Section 1319(b) of MAP 21 directs DOTs, to the maximum extent practicable, to expeditiously develop a single document that consists of an FEIS and ROD, unless certain conditions exist. Traditionally, and in accordance with the CEQ Regulations (40 CFR 1506.10(b)(2)), FEIS and ROD documents are issued as separate documents with a minimum 30-day period between the FEIS and ROD. The FEIS and ROD should be combined unless:

1. The FEIS makes substantial changes to the proposed action that are relevant to environmental or safety concerns; or
2. There are significant new circumstances or information relevant to environmental concerns and that bear on the proposed action or the impacts of the proposed action.

This provision is applicable to all DOT proposed actions, including combination of a Supplemental EIS and ROD. The applicable requirements for both an FEIS and ROD must be met for issuance of a combined FEIS/ROD document.

In using a combined FEIS/ROD, it will be important to consider possible effects on the timing of required coordination under other laws and the need for any additional documentation. For example, having a separate FEIS may facilitate meeting requirements under other laws.

Through the interagency coordination process, MoDOT should notify cooperating agencies as early as possible that they are considering combining the FEIS and ROD, thereby providing agencies the opportunity to express their views about the use of a combined FEIS and ROD for the specific proposed action. This will assist MoDOT/FHWA in making a determination whether combining the FEIS/ROD is practicable or whether it is appropriate to issue the documents separately.

127.14.3.4 Legal Sufficiency Review

Although the Missouri division office of the FHWA conducts the general review of NEPA documents and Section 4(f) Evaluations, regulation requires a legal sufficiency review by FHWA Headquarters Office of Chief Counsel. FHWA regional office staff attorneys generally complete this review on their behalf. FHWA guidance on improving the quality of environmental documents describes the purpose of the FHWA legal sufficiency review as “to ensure that the lead agency's process and evaluations comply with applicable laws, regulations and executive orders, and could be sustained in Federal court if legally challenged.” FHWA Missouri division may conduct the NEPA document and Section 4(f) evaluation review concurrently with the legal sufficiency review based upon their comfort with the quality of the document.

127.14.3.5 FHWA/MoDOT Environmental Partnering Agreement

The FHWA and MoDOT executed a partnering agreement establishing FHWA review times for specific NEPA document types, ground rules, conflict resolution, and performance evaluations. MoDOT district staff must ensure that project schedules developed internally and by consultants will accommodate specified document review times.

127.14.3.6 Projects Involving New or Revised Interstate Access

A change in access to the Interstate System requires approval from FHWA, regardless of whether federal funds are used. This is accomplished by preparation of an Access Justification Report (AJR). Approval of the AJR cannot precede the completion of NEPA. Once NEPA has been completed, approval of the access change is granted as long as there are no changes to the location or design of the accepted concept. Further details on the requirements for preparation and submittal of an AJR can be found in EPG 234.1 Access to Interstate Highways.

127.14.3.7 Early and Advanced Acquisition of Right of Way

In extraordinary cases or emergency situations, consideration may be given to acquisition of hardship or protective purchase of parcels within the limits of a proposed project prior to completion of the appropriate environmental document. The FHWA requirements table outlines the different types of processes and requirements for Early Acquisition (EA) or Advanced Acquisition (AA).

EA alternatives #1, #2, and #4 are mostly commonly used. Both AA alternatives are used. When the district determines that EA #4 or AA #1 or #2 is needed, a separate ROW RES shall be submitted for the parcel being acquired. The parcel must be clearly identified in the request for a NEPA decision. This decision is independent from the project NEPA decision and may require commitments of clearances and permits to be obtained for the project before there are any impacts to the property being acquired. See EPG 127.2.11 Early Acquisition of Right of Way and Disposal of Uneconomic Remnants for the process regarding Section 106 and EPG 236.3.4.4 Early and Advance Acquisition for the right of way acquisition process.

For EA alternatives #1 and #2, a 4(f) screening is needed. This can be accomplished by contacting Design's Environmental Section and documented via email.

127.14.4 Non-Federal Actions, Maintenance, and Off-System Projects

To be considered a non-federal action for purposes of NEPA compliance, a MoDOT project cannot use federal funds in any phase of project development or delivery. NEPA may still be required if a project has a federal nexus or requires federal permits. Click here for more information regarding federal nexus.

Off-system or cost-share projects that receive federal aid are subject to NEPA compliance.

127.14.4.1 Non-Federal Actions

NEPA classification and compliance is required for all MoDOT projects where federal aid funding is used for any purpose including planning, design, right of way acquisition, or construction. Non-federal actions are those that are not on the interstate system or do not require a federal permit, or use federal funding. FHWA maintains oversight on any project that involves the interstate system, regardless of whether federal-aid funding is involved. Non-federal actions do not require NEPA classification and compliance. However, environmental reviews are still completed for all construction projects in order to be eligible for future federal funding.

127.14.4.2 Maintenance

Any MoDOT maintenance project that appears in the STIP is subject to NEPA and environmental compliance. For projects that do not use federal funding, the environmental and historic preservation staff will assist the maintenance and traffic divisions with environmental compliance.

127.14.4.3 Off-System Projects

The NEPA and environmental compliance process for off-system projects is included in EPG 136 Local Public Agency (LPA) Policy. Generally, MoDOT provides quality assurance/quality control for FHWA on NEPA and environmental aspects of off-system projects by reviewing what sponsors submit through the Request for Environmental Review (RER). In order to receive NEPA approval, the sponsor must provide enough information to obtain T&E concurrence, Section 4(f) concurrence, if applicable, and Section 106 clearance as well as reasonable assurances that all other permits will be obtained.

127.14.5 NEPA Glossary

Affected Environment: A description of the existing environment that may be affected by the proposed action.

Access Justification Report (AJR): An Access Justification Report is required for a project that proposes to change or provide new access to an interstate facility. The AJR should demonstrate that an access point is needed for regional traffic needs and not just local system needs.

Alternative: One of a number of specific transportation improvements proposals, alignments, options, design choices, etc., in a defined study area that may address the purpose and need of a proposed project.

Alternative Analysis: Detailed examination of proposed alternatives to determine which alternatives may meet the purpose and need and are reasonable and feasible to be carried forward into the reasonable range of alternatives.

Categorical Exclusion (CE): A category of actions that based on past experience with similar actions, do not individually or cumulatively have a significant effect on the human environment and have been found to have no such effect in procedures adopted by a federal agency pursuant to the National Environmental Policy Act, and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. They are actions which: do not induce significant impacts to planned growth or land use for the area, do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; and do not otherwise, either individually or cumulatively, have any significant environmental impacts.

Context and Intensity: Context is the geographic, biophysical, and social context in which the effects will occur. Intensity is the severity of the impact. The significance of a project is assessed on a case-by-case basis, based on its context and intensity. The context of a project involves analyzing “society as a whole, the affected region, the affected interests, and the locality.” Intensity refers to the severity or degree of a project’s impact. For example, the severity of a project can become greater if there are cumulative impacts, which is the incremental impact of the action, to include past, present, and future developments.

Cooperating Agency: Any federal agency, other than the lead agency, that has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposed project or project alternative. A State or local agency of similar qualifications or, when the effects are on lands of tribal interest, a Native American tribe may, by agreement with the lead agencies, also become a cooperating agency.

Coordination Plan: A plan established by the project lead for coordinating public and agency participation during the environmental review process.

Council on Environmental Quality (CEQ): Established under Title II of the National Environmental Policy Act (NEPA) to develop federal agency-wide policy and regulations for implementing the procedural provisions of NEPA, resolve interagency disagreements concerning proposed major federal actions, and to ensure that federal agency programs and procedures are in compliance with NEPA.

Cumulative Effect: The incremental environmental impact or effect of the proposed action, together with impacts of past, present, and reasonably foreseeable future actions, regardless of what agency (federal or non-federal) or person undertakes such other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time.

Direct Effect: Direct effects occur through direct interaction of an activity with an environmental, social, or economic component.

Environmental Consequences: Environmental effects of project alternatives, including the proposed action, any adverse environmental effects that cannot be avoided, the relationships between short-term use of the human environment, and any irreversible or irretrievable commitments of resources which would be involved if the proposal should be implemented.

Environmental Assessment (EA): A concise public document prepared in compliance with the National Environmental Policy Act (NEPA), that briefly discusses the purpose and need for an action, alternatives to such action, and provides sufficient evidence and analysis of impacts to determine whether to prepare an environmental impact statement or a finding of no significant impact.

Environmental Impact Statement (EIS): A detailed written statement required by section 102 (2) (C) of the National Environmental Policy Act (NEPA), analyzing the environmental impacts of a proposed action, adverse effects of the project that cannot be avoided, alternative courses of action, short-term uses of the environment versus the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitment of resources.

Environmentally Preferable Alternative: the alternative that will promote the national environmental policy as expressed in NEPA's Section 101. Ordinarily, this means the alternative that causes the least damage to the biological and physical environment; it also means the alternative which best protects, preserves, and enhances historic, cultural, and natural resources.

Finding of No Significant Impact (FONSI): If it is determined that there will be no significant impacts a finding of no significant impact (FONSI) will be prepared to conclude the process and document the decision. A FONSI is issued when environmental analysis and interagency review during the EA process find a project to have no significant impacts on the quality of the environment. Human Environment: Includes the natural and physical environment and the relationship of people with the environment.

Impact (Effect): A direct result of an action that occurs at the same time and place; or an indirect result of an action which occurs later in time or in a different place and is reasonably foreseeable; or the cumulative results from the incremental impacts of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions.

Indirect Effect: Indirect impacts on the environment are these which are not a direct result of the project, often produced away from or as a result of a complex impact pathway. The indirect impacts are also known as secondary or even third level impacts.

Independent Utility: A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area.

Interagency Coordination: The coordination that occurs between elements of lead agency, and engaged US Government agencies, nongovernmental organizations, and regional and international organizations for the purpose of accomplishing an objective.

Lead Agency: The agency or agencies responsible for preparing environmental impact statements or environmental assessments.

Legal Sufficiency Review: Additional review by FHWA for all Draft and Final EISs and Draft and Final Section 4(f) Evaluations to ensure that the lead agency’s process and evaluations comply with applicable laws, regulations and executive orders, and could be sustained in federal court if legally challenged.

Location Study: A location study is prepared to determine the most advantageous location and type for a proposed highway improvement based on project purpose and need and on engineering and environmental constraints. The location study and the environmental analysis are developed in conjunction with each other.

Logical Termini: Rational endpoints for both a transportation improvement and a review of the environmental impacts.

Major Federal Action: Actions with effects that may be major and which are potentially subject to federal control and responsibility.

Major Traffic Disruption (PCE agreement threshold): is a project (for bundles this applies to each independent location rather than referring to a project number) where: 1) available detours are greater than 25 miles rural or 5 miles urban (U.S. Census Bureau designated urbanized area or an urban cluster) and can include non-state local routes, and 2) provisions are not made for local access and so posted or locally owned roads are not accessible in the area.

Memorandum of Agreement (MOA): A formal business document used to outline an agreement made between two separate entities, groups or individuals. A MOA usually precedes a more detailed contract or agreement between the parties.

Memorandum of Understanding (MOU): A bilateral or multilateral agreement between two or more parties. It expresses a convergence of will between the parties, indicating an intended common line of action. It is often used in cases where parties either do not imply a legal commitment or in situations where the parties cannot create a legally enforceable agreement.

Mitigation: Also, synonymous with Commitment. Planning actions taken to avoid an impact all together, minimize the degree or magnitude of the impact, reduce the impact over time, repair or restore the impact, or compensate for the impact.

National Environmental Policy Act (NEPA): NEPA requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions. Under the NEPA process, agencies evaluate the environmental and related social and economic effects of their proposed actions and provide opportunities for public review and comment on those evaluations. NEPA applies to a broad range of federal actions that include, but are not limited to, constructing highways and other publicly owned facilities, adopting federal land management actions, and federal permitting.

Notice of Availability (NOA): Notices of availability of environmental documents published in local, state, or regional clearinghouses, newspapers, and other means; that may or may not require a public comment period.

Notice of Intent (NOI): A notice published in the federal register that an environmental impact statement will be prepared and considered.

No-Build Alternative: The alternative where current conditions and trends are projected into the future without the proposed action.

Participating Agency: Agencies with an interest in the project. The standard for participating agency status is more encompassing than the standard for cooperating agency status. Therefore, cooperating agencies are, by definition, participating agencies. But not all participating agencies are cooperating agencies. The lead agencies should consider the distinctions in deciding whether to invite an agency to serve as a cooperating/participating agency or only as a participating agency

Preferred Alternative: The alternative within the range of alternatives presented in an environmental assessment or environmental impact statement that the agency believes would best fulfill the purpose and need of the proposed action.

Programmatic Agreement (PA): A document that spells out the terms of a formal, legally binding agreement between a state Department of Transportation (DOT) and other state, local and/or federal agencies.

Programmatic CE (PCE): Established through a PCE Agreement between FHWA and the State DOT to make Categorical Exclusions (CE) (most of which are listed under 23 CFR Part 771.117(d)) more efficient and faster. The PCE agreement allows the State DOT to document, review and approve CEs in order to move on to the next step of the project development without requiring division office review.

Proposed Action: A plan that contains sufficient details about the intended actions to be taken, or that will result, to allow alternatives to be developed and its environmental impacts analyzed.

Public Involvement: An integral part of the transportation process which helps to ensure decisions are made in consideration of and to benefit public needs and preferences. It involves seeking public input at specific and key points in the decision-making process where such input has a real potential to help shape the final decision or set of actions. This includes early and continuing opportunities during project development for the public to be involved in the identification of social, economic, and environmental impacts, as well as impacts associated with relocation of individuals, groups, or institutions.

Purpose and Need: A clear and well documented section of an EIS or EA or some CEs defining the need for the project and how that need will be fulfilled. The purpose and need drives the development of the range of alternatives.

Range of Alternatives: All reasonable alternatives discussed in a NEPA document which are rigorously explored and objectively evaluated, as well as those other alternatives, which are eliminated from detailed study with a brief discussion of the reasons for eliminating them. What constitutes a reasonable range of alternatives depends on the nature of the proposal and the facts in each case. A decision maker must not consider alternatives beyond the range of alternatives discussed in the relevant environmental documents. The range of alternatives must include the no-build alternative.

Record of Decision (ROD): A concise public record of decision prepared by the federal agency, pursuant to NEPA that contains a statement of the decision, identification of all alternatives considered, identification of the environmentally preferred alternative, a statement as to whether all practical means to avoid or minimize environmental harm from the alternative selected has been adopted (and if not, why), and a summary of monitoring and enforcement where applicable for any mitigation.

Reevaluation: A reevaluation is the process of determining whether or not the NEPA decision made for a project remains valid. A NEPA document is based on the scope of a project at the time it’s approved. Various factors and circumstances may change that scope throughout the development of the project. Any changes to the project’s concept or the affected environment after the NEPA decision is made, even after the project has begun, must be reevaluated to determine what effects these changes might have on the validity of the environmental documentation. A reevaluation of the NEPA decision must additionally be made if more than 3 years has passed and the project has not progressed. Reevaluations are in place at key points during the RES process to check for those possible changes and make adjustments to the NEPA conclusion if it’s no longer accurate.

Request for Environmental Services (RES): RES is a Webform Application that sends an electronic copy to a selected group of Administration and Environmental/Historic Preservation staff for each district when submitted. The distribution ensures that the RES submissions do not wait on an individual who may be out of the office for an extended period of time. In addition to submitting the RES, the appropriate Design Liaison Engineer should be entered in as a district contact when submitted. The electronic application was developed for a faster submittal process and response from the Environmental/Historic Preservation staff.

Request for Environmental Review (RER): RER is a Webform Application that sends an electronic copy to a selected group of Administration and Environmental/Historic Preservation staff for each district when submitted. The distribution ensures that the RER submissions do not wait on an individual who may be out of the office for an extended period of time. In addition to submitting the RER, the appropriate LPA Liaison’s should be entered in as a district contact when submitted. The electronic application was developed for a faster submittal process and response from the Environmental/Historic Preservation staff.

Scope of Environmental Review: The range of actions, alternatives, and impacts to be considered in a project.

Scoping: An early and open process for determining the extent and variety of issues to be addressed and identifying the significant issues related to a proposed action.

Segmentation: Segmentation can occur when an action is broken down into small parts in order to avoid the appearance of significance of the total action. An action can be too narrowly defined, minimizing potential impacts in an effort to avoid a higher level of NEPA documentation. The scope of an action must include the consideration of connected, cumulative, and similar actions.

Significant: Term used in NEPA that considers both context and intensity.

State Transportation Improvement Plan (STIP): The Statewide Transportation Improvement Program (STIP) is a comprehensive list of all projects, or project phases, in Missouri proposed to receive federal funding, pursuant to Title 23 U.S.C. and 49 U.S.C.

Tiering: A NEPA document covering general matters in broader environmental impact statements with subsequent narrower statements of environmental analysis, incorporating by reference, the general discussions and concentrating on specific issues.

Unavoidable Adverse Effects: Effects that cannot be avoided due to constraints in alternatives. These effects do not have to be avoided by the planning agency, but they must be disclosed, discussed, and mitigated for, if possible.

Unresolved Controversy (PCE agreement threshold): Controversy is considered more than a singular expression of dissatisfaction. Controversy is considered a substantial dispute as to the size, nature or extent of the proposed project. In cases when controversy is anticipated, MoDOT will discuss the potential for controversy with FHWA to determine if the project can be processed under the FHWA-MoDOT PCE agreement. When MoDOT is unsure whether a project should be considered controversial, MoDOT will engage FHWA for discussion and determination if a PCE is appropriate.

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