127.23 Negotiated Commitments and Mitigation in the National Environmental Policy Act (NEPA) Process

127.23.1 Discussion

Commitments often are made to the public and to federal and state agencies during the planning phases of a project. Commitments can also be made as a condition of permits or implemented to address resource agencies’ comments and requirements. It is essential that these commitments be carried through the design, construction, and maintenance phases of a project.

The guidelines for evaluating potential impacts to sensitive resources establish a three-step approach, commonly called sequencing. The first step is to avoid the resource whenever or wherever possible. If a sensitive resource cannot be avoided, then the second step is to minimize the impact to the greatest extent possible. The third step is to consider compensatory mitigation to offset harm to the resource from those impacts that remain after steps one and two.

127.23.1.1 Types of Commitments

127.23.1.1.1 Avoidance

When potential impacts to sensitive resources are identified, district design staff in coordination with the environmental and historic preservation units should revise feasible alternatives during the planning or design phases to avoid impact to these areas wherever possible. Avoidance can include shifting alignments (or selecting an entirely new alignment) as well as changing grade/bridging to avoid a sensitive area.

127.23.1.1.2 Minimization

Minimization involves measures to reduce proposed impacts to a resource. District design staff in coordination with the environmental and historic preservation units should work to minimize resource impacts wherever feasible. Minimization measures can include alignment shifts, a commitment to off-season construction (to avoid habitat during breeding season), and a variety of measures to minimize the increase of traffic or construction noise expected to result from a project.

127.23.1.1.3 Compensation

Compensation is a type of mitigation that makes an effort to replace land or facilities to offset damages or displacements. When right of way requires displacing homes or businesses, compensation can be provided in the form of relocation assistance. When partial property acquisitions are necessary, compensation can be used for landscaping to shield views of the project or for loss of use of the land (for example, if part of a mall’s parking lot is taken, compensation could be used to build a parking structure on the remaining property).

Compensation also is used to mitigate impacts to natural resources as when, for example, new wetlands are constructed to compensate for the wetlands lost because of a project or endangered species habitat on private land is purchased and secured for permanent wildlife use in exchange for a similar or smaller area of habitat that will be taken for use by a project. Compensation for impacts involves collaboration among MoDOT design, right of way, and environmental and historic preservation staff.

127.23.1.1.4 Enhancements

Enhancements are basically compensations that go beyond merely trying to “make up” for an impact and attempt to create conditions that are better than those existing before a project. Examples of enhancements are landscaping to such a high level that it creates a gateway to a city or town where a gateway did not previously exist or additions of public art to an unattractive overpass that needs to be widened. Another example is the installation of playground equipment or the addition of paved pedestrian paths to a park that has lost a small amount of its land to a new highway. In light of practical design initiatives, developing enhancements will require innovative partnerships and fiscal resource conservation. Consider cost sharing on enhancements that local entities request. It is advisable to get central office management’s concurrence on an enhancement before developing and finalizing it in a NEPA document.

127.23.2 Project Development and Commitments

The environmental unit or consultants prepare an Environmental Commitment Summary by gathering information from project-specific NEPA documents, including public comments obtained from those commenting on the various environmental impacts resulting from the project.

Sometimes commitments may be included in separate documents for processes that run concurrently with the NEPA process; examples include Section 4(f), Section 6(f), and Section 106. Commitments can also be made as part of permits and memorandums of understanding that itemize the specific requirements of the resource agencies.

Finally, MoDOT incurs commitments as a part of standard specifications, standard operating policies, and procedures implemented as a requirement on all construction projects, such as MoDOT’s Temporary Erosion and Sedimentation Control Procedures and diamond grinding environmental specifications.

127.23.2.1 Coordinating Environmental Commitments

MoDOT must track commitments made during the NEPA process through project design, permitting, and construction until they are retired or handed over to maintenance.

To ensure that commitments are communicated from the design phase through the maintenance phase, the environmental and historic preservation units will be tracking that these requirements are met. Some of the communication processes include: the Environmental Commitments Summary, Environmental Plan notes, construction plans (including general notes in the plans and attached Special Provisions), pre-construction conferences, construction coordination meetings, and post-construction conferences.

At the preconstruction meeting the RE will highlight which commitments are the contractor’s responsibilities and which are the RE’s responsibility (such as notification and monitoring requirements). All commitments that are the contractor’s responsibility must be addressed appropriately in the pre-bid and contract documents. Permit language is often not appropriate for contract language and consequently, commitments must be translated into a checklist of permit conditions that are biddable by the contractor, buildable in practice, and enforceable. Such translation is a joint effort among MoDOT environmental, design, and construction staff. The outcome of this effort should be a clear understanding of the individual commitment and whether it is covered by a standard specification, a general provision, a standard plan, or a special provision within the contract. This type of clarity will help ensure that contractors know what their environmental responsibilities are and how those responsibilities are covered in the contract. It will also ensure the permitting agency that MoDOT is fulfilling its commitments.

127.23.2.2 Post-Letting Activities and Commitments

As a project progresses through the design and construction phases, MoDOT makes many commitments to the various resource agencies in the form of mitigation plans and permit conditions to protect the environment, reduce social impacts, and protect cultural and historic resources. Some of those commitments must be fulfilled during maintenance and operations.

Interagency agreements between MoDOT and resource agencies also include environmental commitments. In addition, MoDOT must comply with statutory requirements that do not involve permits or approvals, such as those relating to special and demolition waste, open burning, and underground storage tanks. Some commitments are unique to a given project, while other requirements are covered by standard operating procedures. MoDOT maintenance personnel are often responsible for these commitments. Efforts to communicate these commitments are being implemented, through information placed on as-built plans, on-site signage, and direct communication from the design division.