127.14 National Environmental Policy Act (NEPA) Classification and Documents

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Figures
NEPA Process Flow Chart
NEPA Process "Documentation Timeline"
Forms
Categorical Exclusion (CE) Form


127.14.1 Discussion

127.14.1.1 Overview

The National Environmental Policy Act (NEPA) requires consideration of the physical environment for any project that uses federal funding or requires federal permits. Click here for more information. To fulfill NEPA requirements related to federal funding or federal permitting, MoDOT must assess the effects of the project on the natural and human environment to aid in selecting the least damaging practicable alternative. Pursuant to MoDOT’s stewardship goals and tangible result of being environmentally responsible, MoDOT Design environmental staff review every project and coordinate with the Federal Highway Administration (FHWA) to determine the appropriate environmental classification/level of NEPA documentation for a project as soon as the scope and location have been determined.


The basic NEPA classifications are:

  • Categorical Exclusion (CE)
  • Environmental Assessment (EA)
  • Environmental Impact Statement (EIS)

The environmental classification is based on the scope of the project (including the programming information provided in the Statewide Transportation Improvement Program (STIP)), a screening for constraints performed by environmental and historic preservation staff, and possible impacts supplied by the district and by 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 an impact is determined by both the intensity and context of the impact. For example, filling 1 acre of a 100-acre wetland may not be significant, while filling 1 acre of a 2-acre wetland may be significant. The intensity of these impacts is the same, but their context is different. 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 units.

127.14.1.2 Laws, Regulations, and Guidance

T 6640.8A (October 1987) provides practical guidance for implementing NEPA.

MoDOT must comply with numerous environmental laws and regulations when planning, designing, and constructing transportation projects. As the “umbrella” for that compliance and as embodied in a full public disclosure document that facilitates an interdisciplinary approach to considering a project’s potential environmental impacts, NEPA requires interpreting and administering, to the fullest extent possible, 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. For example, MoDOT may still need to obtain a Section 404 permit or, perhaps, a floodplain development permit. In many instances, compliance is not fully attained until mitigation plans have been approved.

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 conversion, hazardous and solid waste, noise, air quality, Federal Emergency Management Agency (FEMA) buyout properties, and Section 4(f) public lands describe various topical subjects and reference the laws and regulations pertaining to the subject of the article.

127.14.1.3 Process

Design environmental and historic preservation staff oversee preparation of environmental documentation. MoDOT staff prepares some NEPA documents while consultants prepare others. 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 that 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.

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, 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.

127.14.1.3.1 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). Initial environmental classification of projects by MoDOT environmental staff and FHWA identifies the projects that qualify as CEs. Most of MoDOT’s projects are CEs (use the Categorical Exclusion Form). Although a project is classified as a CE, that “environmental clearance” only indicates compliance with NEPA, i.e., an EIS or EA is not required for the project. Use of federal funds on the project or the need for a federal permit, such as a Clean Water Act permit, requires compliance with up to 30 other federal laws. Pertinent regulations must be satisfied prior to project construction. Check with the environmental and historic preservation manager regarding those clearances (also see the topical links in 127.14.1.2 Laws, Regulations, and Guidance).

The district should submit two copies of an (RES) to the Design Division so that initial environmental and cultural resource screening can occur. This should be done at least one year before detailed design is expected to begin so that these issues can be resolved. At the very least, the RES process should be initiated so that NEPA compliance can be attained before the preliminary plans approval stage. A prelocation meeting is held for some projects with a CE classification (see Public Involvement). A CE determination must be made before detailed design can begin. A flow chart showing the NEPA project development process is available.

MoDOT processes CEs in three ways—as a programmatic CE, a letter CE, and a CE2.


Programmatic CE
FHWA and MoDOT executed a programmatic agreement on June 9, 2003, that allows MoDOT environmental staff to approve certain types of projects as CEs without FHWA concurrence. The list of eligible projects included with the agreement consists of projects that are categorically excluded from the formal documentation requirements of NEPA per CFR 771 and that do not involve: impacts to a Section 4(f) public recreational resource, formal consultation according to the Endangered Species Act, an inordinate level of community impacts or environmental justice issues, changes to control of landowner access, substantial hazardous materials involvement, unresolved Wild and Scenic Rivers issues, or exceeding the National Ambient Air Quality Standards. Additionally, in most cases, the amount of new right of way and permanent easement combined must be less than three acres for the project to qualify as a programmatic CE. The programmatic agreement allows FHWA to inspect MoDOT’s environmental project files to ensure compliance with the programmatic agreement. Semiannually, MoDOT sends FHWA a list of projects that were determined to meet the criteria for programmatic CEs.

Process and Timeframes

A programmatic CE determination is made after environmental and historic preservation staff review the RES submitted at the location/conceptual plan stage. In most cases, the programmatic CE can be issued within 5 weeks of the RES submittal. At the discretion of the Environmental Compliance Manager, project-specific coordination with FHWA may be conducted for projects that appear to qualify as CE under the programmatic agreement.


Letter CE
For projects that are generally anticipated to have low environmental impacts but do not meet the criteria for use of the programmatic agreement, a letter is prepared and submitted to FHWA requesting their concurrence in a CE designation for a particular project. A summary of anticipated impacts is presented in the letter.

Process and Timeframes

As indicated above for programmatic CEs, the decision point for determining the applicability of a CE letter coincides with submittal of an RES at the location/conceptual plan stage. Generally, FHWA approval of a letter CE can be obtained within about 6 weeks after submittal of the RES.


CE2
For projects where FHWA is uncertain of the CE determination, environmental staff prepare a CE2 form (open-ended Categorical Exclusion) describing the proposed action, any impacts that will result from the action, and any mitigation measures that will be used to compensate for expected impacts. The district will be requested to provide project specific information such as job number, route, county, project termini and length, project description, current and future average daily traffic (ADT), right-of-way needs and displacements, and a location. For FHWA to classify the CE2 as a CE instead of an EA or EIS, the CE2 document must demonstrate to FHWA that the project will not have significant impacts and is, therefore, in a category excluded from the requirement to prepare an EIS or EA. FHWA may approve the request, ask for more information, or indicate that an EA or EIS needs to be prepared.

Process and Timeframes

The environmental staff generally prepares CE2 documentation, but occasionally a consultant will also prepare and submit the documentation to MoDOT for review before it is forwarded to FHWA. After submittal of the RES, a CE2 document should be approved by FHWA within 7 weeks.

127.14.1.3.2 Environmental Assessment

An EA is prepared when there is uncertainty about the significance of the impacts from a project. FHWA generally expects an EA for two-lane relocation projects and often for add-a-lane projects on new right of way; other types of projects may also require an EA. 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 sufficiently early during project development to ensure that NEPA compliance can be achieved before the preliminary plans approval stage.

An EA describes a project’s purpose and need, identifies the alternates that are being considered, and discusses the expected impacts. It should discuss 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 may need to be prepared.

MoDOT should begin consultation via an interagency coordination/scoping process with interested regulatory agencies and others, at the earliest appropriate time, to advise them of the scope of the project. This consultation will help determine those aspects of the proposed action having potential for social, economic, or environmental impact and identify other environmental review and consultation requirements that will be performed currently with the EA. MoDOT must 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) or the U.S. Fish and Wildlife Service (FWS), to become cooperating agencies. The agency(ies) are indicated on the EA’s cover page.

MoDOT also works with the FHWA to initiate consultation with federally recognized American Indian tribes determined to have an interest in the project area. FHWA conducts such consultation on a government-to-government basis, determining 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’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 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.

A prelocation meeting is held prior to NEPA document preparation for all projects classified as EAs (see 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 completing the following work items:

  • Finalize the Location Study. All alternates considered, including those discarded, must be depicted graphically.
  • Indicate the preferred alternate.
  • Evaluate all proposed reasonable alternates equally; the EA must include more than a single build alternative as well as the no-build alternate. Reasonable alternates addressed in the EA are those that may be constructed in the event that the perferred alternate is not selected.
  • Identify all previously reported archaeological and historic sites located within the study corridor and all alternates being considered. FHWA and MoDOT will determine whether the location and current condition of previously reported resources require verification. Complete a Phase I archaeological survey for the preferred alternate. Identify all areas for which landowner access was denied or the survey was not conducted at the preliminary EA stage. Determine which sites identified in the project area require Phase II archaeological testing or evaluation. If the Missouri Department of Natural Resources (DNR) determines any sites require further testing, Phase II archaeological testing must also be completed unless coordination with FHWA determines such testing may be postponed to a later time.
  • Identify all buildings and bridges 50 years old or older within all alternates being considered and provide an initial assessment of the resources’ potential eligibility to the National Register of Historic Places (NRHP). Submit all buildings, bridges, and culverts impacted by the preferred alignment, including those less than 50 years of age, to DNR’s State Historic Preservation Office (DNR-SHPO) for concurrence in a determination of eligibility to the NRHP.
  • If the proposed project will adversely impact any NRHP-eligible sites or historical structures, the EA must include either a draft Memorandum of Agreement (MOA) or draft Programmatic Agreement (PA) identifying uncompleted or mitigation activities to be completed prior to project construction.
  • Indicate impacts to parklands, wildlife refuges, or other publicly owned recreational use areas that may qualify for Section 4(f) protection, along with a statement as to the status of agency coordination on those impacts. The EA must include a Draft Section 4(f) Evaluation for impacts to these public lands, if applicable, or if the preferred alternate will cause adverse effects to certain kinds of cultural resources that require preservation in place, such as cultural resources that are NRHP-eligible for reasons other than the data associated with them (e.g., the location/setting is important, associated with significant historic events or people; distinctive characteristics of a type, period, or method of construction; involves human burial). Although prehistoric archaeological sites containing human remains will require Section 4(f) consideration, typically prehistoric sites not containing human remains will not require Section 4(f) consideration. A single Draft Section 4(f) Evaluation is prepared for all Section 4(f) resources, including both public lands and historic sites, potentially impacted by the project. This evaluation includes a consideration of all measures to minimize harm to the Section 4(f) resources.
  • Identify any Section 6(f) resources the project will affect. Any Section 6(f)(3) conversion documentation required cannot be completed until the NEPA process is concluded because the Section 6(f) document must include copies of the approved FONSI signature page and/or signed Section 4(f) evaluation. However, elements of the Section 6(f) document may be assembled during preparation of the NEPA document.
  • Conduct a preliminary wetland and stream evaluation to identify potential jurisdictional wetland areas and streams. Estimate the areas of wetlands in the project area for all alternatives using conventional mapping sources and windshield survey and document expected impacts.
  • Determine the presence or absence of threatened or endangered plant and/or animal species within the project limits.
  • Determine farmland impacts using either Form AD-1006 for site projects or Form SCS-CPA-106 for corridor projects.
  • If applicable, perform a noise analysis that identifies noise sensitive receptors based on the Noise Abatement Criteria. Determine whether receptors meet the criteria for the installation of a noise wall. The location of any necessary noise walls is proposed (this may change subject to subsequent detailed design and public involvement with the affected residents).
  • Determine the number of displacements, the effect on pedestrian and bicycle traffic, the secondary and cumulative impacts, and other social and economic impacts of the project.
  • Demonstrate that the proposed project is in compliance with the Clean Air Act.

The pEA is circulated within MoDOT for review by the technical support engineer, central office design staff, and district personnel. Central office Design staff review all comments and a revised pEA is prepared. The revised pEA must include a draft Section 4(f) evaluation if applicable. MoDOT upper management must be briefed on the project and the pEA at this stage; central office design staff can assist the district in scheduling and preparing for the project briefing. MoDOT environmental staff then send the pEA to the FHWA 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 sheet. To help ensure that the pEA remains an internal document, each page is imprinted with the words "Preliminary Draft" and the first page of the document contains the following statement:

"This is a preliminary draft document that is undergoing internal review within the Missouri Department of Transportation (MoDOT). It is not intended for distribution outside of MoDOT. The Federal Highway Administration has determined that this preliminary document is an intergovernmental exchange that may be withheld under the Freedom of Information Act. Premature release of this material to any segment of the public could give some sectors an unfair advantage and would have a chilling effect on intergovernmental coordination and the success of the cooperating agency concept. For these reasons, we respectfully request that the public not be given access to this document."

After the internal, FHWA, and cooperating agency comments on the pEA have been addressed, the EA is ready for FHWA’s final review and approval. Once FHWA signs the EA, the district holds a location public hearing (see 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. 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. The approved EA is made available for review and copying 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.

Once the 30-day public comment period has ended and all comments from the public and other agencies have been collected, a letter to FHWA is prepared. The letter should summarize any public and/or agency coordination that occurred after the EA was signed. The letter 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 Public Involvement) and also to FHWA for review.

The letter must describe any changes to the EA-designated preferred alternate and document any additional impact analyses performed for the final, selected alternate. The letter 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, either an MOA or a PA executed by the DNR-SHPO, FHWA, Advisory Council on Historic Preservation (ACHP), and MoDOT must accompany the letter. The MOA or PA will identify uncompleted or mitigation 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 for parklands, wildlife refuges, or other public lands affected.

Federal regulation requires at least 30 days between FHWA’s approval of the EA and the date of the FONSI approval. In practice, the length of time needed to go from an approved EA to an approved FONSI is governed by MoDOT’s requirements relating to public hearings (minimum 21-day advertisement period before hearing, 10-day open comment period after hearing, preparation and submittal of hearing transcript to FHWA, etc.) as well as completion of any additional environmental impact analyses, preparation of the letter to FHWA, assembly of supporting documentation, and Memorandum of Agreement (MOA) execution (if necessary) prior to approval of the FONSI.

When the letter is completed and the listed items are included, the documentation is submitted along with a FONSI signature page to FHWA (and to cooperating agencies for their review and comment if the selected alternate differs from the EA-designated preferred alternate). If the FONSI is for a new controlled access freeway, a highway project of four or more lanes on a new location, or other action described in 23 CFR §771.115a, the letter to FHWA and accompanying documentation described above must be made available for public review, including affected units of government, for a minimum of 30 days before FHWA makes its final decision. A notice similar to that for a public hearing must announce the availability of the documentation.

FHWA will review the letter, accompanying documentation, and any public hearing comments and other comments received regarding the EA. If FHWA determines after reviewing the documentation that 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 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.

The primary district responsibility in creating an in-house environmental document is to prepare and submit a Location Study to the Design Division. The Design Division then incorporates the Location Study into the EA. If the environmental document is to be prepared by consultant, the district normally oversees the selection of the consultant and preparation of the scope of work. The environmental and historic preservation staff will provide assistance in this process.

Timeframes

An EA can be prepared by MoDOT environmental staff or by consultant. The project schedule should allow about 2 years for obtaining a FONSI. Click here to view details on required availability and comment periods.

127.14.1.3.3 Environmental Impact Statement

An EIS is required for projects that have clearly identified and significant social, economic, or environmental impacts. FHWA indicates that an EIS is required on four-lane relocations as well as major bridges or projects that are controversial. 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 sufficiently early during project development to ensure that NEPA compliance can be achieved before the preliminary plans approval stage.

An EIS describes a project's purpose and need, identifies the alternates being considered, and discusses expected impacts in detail. To the extent possible, it also indicates compliance with other regulations. The EIS includes procedures to minimize harm and details mitigation measures/environmental commitments.

MoDOT should begin consultation via an interagency coordination/scoping process with interested regulatory agencies and others, at the earliest appropriate time, to advise them of the scope of the project. This consultation will help determine those aspects of the proposed action having potential for social, economic, or environmental impact and identify other environmental review and consultation requirements that will be performed currently with the EA. MoDOT must 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) or the U.S. Fish and Wildlife Service (FWS), to become cooperating agencies. The agency(ies) are indicated on the EA’s cover page.

MoDOT also works with the FHWA to initiate consultation with federally recognized American Indian tribes determined to have an interest in the project area. FHWA conducts such consultation on a government-to-government basis, determining 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’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 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.

Section 6002 (Efficient Environmental Reviews for Project Decision Making) of the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2003 (SAFETEA-LU) updates the environmental review process by adding a new category of "participating agencies” for federal, state, and local agencies and tribal nations that have an interest in the project. Section 6002 stipulates that both participating agencies and the public will be given the opportunity to comment on the purpose and need and range of alternatives for a project. Previously only cooperating agencies were offered such an opportunity. MoDOT collaborates with FHWA in deciding which agencies should be invited to participate as either cooperating or participating agencies or both. Also under the provision, the lead agency (MoDOT and FHWA as joint leads) must establish a coordination plan for agency and public participation and comment.

A prelocation meeting is held prior to NEPA document preparation for all projects classified as EISs (see Public Involvement). MoDOT, or a consultant, will then prepare a preliminary Draft EIS (pDEIS), i.e., a Draft EIS that has not yet been through initial internal and FHWA review. A pDEIS requires completing the following work items:

  • Finalize a Location Study document. All alternates considered, including those discarded, must be depicted graphically as part of the report.
  • Indicate a preferred alternate if one stands out.
  • Evaluate all proposed reasonable alternates equally. Reasonable alternates addressed in the EIS are those that may be constructed in the event that the perferred alternate is not selected. Provisions of SAFETEA-LU 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 preferred alternative can be developed to a higher level of detail than the other alternatives for only the following reasons: (1) to facilitate the development of mitigation measures, or (2) to facilitate concurrent compliance with other applicable environmental laws. MoDOT and FHWA must agree that a particular alternative is the preferred alternative and that the relevant conditions are met, before developing that alternative in greater detail. If the MoDOT and FHWA do not agree, then they must work out their differences because work on developing an alternative in greater detail cannot proceed until the lead agencies agree. MoDOT and FHWA can consider on a case-by-case basis whether such higher level of detail is warranted.
  • Identify all previously reported archaeological and historic sites located within the study corridor and all alternates being considered. FHWA and MoDOT will determine whether the location and current condition of previously reported resources require verification.
  • Identify all buildings and bridges 50 years old or older within all alternates being considered and provide an initial assessment of the resources' potential eligibility to the National Register of Historic Places (NRHP).
  • Indicate impacts to parklands, wildlife refuges, or other publicly owned recreational use areas that may qualify for Section 4(f) protection, along with a statement as to the status of agency coordination on those impacts. The DEIS must include a Draft Section 4(f) Evaluation for impacts to these public lands, if applicable, or if the preferred alternate will cause adverse effects to certain kinds of cultural resources that require preservation in place, such as cultural resources that are NRHP-eligible for reasons other than the data associated with them. Typically, prehistoric archaeological sites containing human remains will require Section 4(f) consideration although prehistoric sites not containing human remains will not require Section 4(f) consideration. A single Draft Section 4(f) Evaluation is prepared for all Section 4(f) resources, including both public lands and historic sites, potentially impacted by the project. This evaluation includes a consideration of all measures to minimize harm to the Section 4(f) resources.
  • Conduct a preliminary wetland evaluation to identify potential jurisdictional wetland areas and possible impacts to them.
  • Determine the presence or absence of threatened or endangered plant and/or animal species within the project limits.
  • Determine farmland impacts using either Form AD-1006 for site projects or Form SCS-CPA-106 for corridor projects.
  • If applicable, perform a noise analysis that identifies noise sensitive receptors based on the Noise Abatement Criteria. Determine whether receptors meet the criteria for the installation of a noise wall.
  • Determine the number of displacements, the effect on pedestrian and bicycle traffic, the secondary and cumulative impacts, and other social and economic impacts of the project.
  • Conduct a records search to determine the presence of possible hazardous waste sites.
  • Demonstrate that the proposed project is in compliance with the Clean Air Act.

The pDEIS is circulated within MoDOT for review by the technical support engineer, central office design staff, and district personnel. Central office design staff review all comments and a revised pDEIS is prepared. The revised pDEIS must include a draft Section 4(f) evaluation if applicable. MoDOT upper management must be briefed on the project and the pDEIS at this stage; central office design staff can assist the district in scheduling and preparing for the project briefing. MoDOT environmental staff sends the pDEIS to the FHWA 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 pDEIS cover sheet. To help ensure that the pDEIS remains an internal document, each page is imprinted with the words “Preliminary Draft” and the first page of the document contains the following statement:

"This is a preliminary draft document that is undergoing internal review within the Missouri Department of Transportation (MoDOT). It is not intended for distribution outside of MoDOT. The Federal Highway Administration has determined that this preliminary document is an intergovernmental exchange that may be withheld under the Freedom of Information Act. Premature release of this material to any segment of the public could give some sectors an unfair advantage and would have a chilling effect on intergovernmental coordination and the success of the cooperating agency concept. For these reasons, we respectfully request that the public not be given access to this document."

After the internal, FHWA, and cooperating agency comments on the pDEIS have been addressed, the DEIS is ready for FHWA’s final review and approval. Once the DEIS is signed by FHWA, public and agency comments must be requested. The approved DEIS 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, (see Public Involvement), and prepares the transcript for submittal to the Design Division. The transcript must be available for review by the Design Division and the FHWA prior to preparation of the 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 preliminary Final EIS (pFEIS) is prepared. The following items of work must be completed as part of the pFEIS:

  • All substantive comments gathered 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, must be satisfactorily addressed. To ensure this, the location public hearing transcript must have been previously submitted to the Design Division (see Public Involvement) and also reviewed by FHWA.
  • A preferred alternate must be declared.
  • A Phase I archaeological survey must be completed for the perferred alternate(s) and all areas for which landowner access was denied or the survey was not conducted should be identified. A determination should be made of which sites identified in the project area require Phase II archaeological testing or evaluation. If the Missouri Department of Natural Resources (MDNR) determines any sites require further testing, Phase II archaeological testing must also be completed unless coordination with FHWA and the district determine such testing may be postponed to a later time.
  • All buildings, bridges, and culverts impacted by the preferred alignment that were not previously reviewed by the MDNR’s State Historic Preservation Office (MDNR-SHPO), regardless of age, must be submitted to MDNR for concurrence in a determination of eligibility to the NRHP.
  • If the proposed project will adversely impact any NRHP-eligible sites or historical structures, the pFEIS must include either a Memorandum of Agreement (MOA) or a Programmatic Agreement (PA) executed by the MDNR-SHPO, FHWA, Advisory Council on Historic Preservation (ACHP), and MoDOT. The MOA or PA will identify uncompleted or mitigation activities to be completed prior to project construction. If the project will impact prehistoric sites known or likely to contain human remains, the MOA or PA will also be provided to appropriate American Indian tribes with cultural interest in the region for review and comment.
  • A Final Section 4(f) Evaluation, when required, must be included in the pFEIS for any impacted historic structures and for parklands, wildlife refuges, or other public lands affected.
  • A preliminary jurisdictional wetland and stream delineation is conducted in the project area for the preferred alternative and expected impacts are documented.
  • The location of any necessary noise walls is proposed (this may change subject to subsequent detailed design and public involvement with the affected residents).

When these work items are completed and included in a preliminary FEIS, MoDOT circulates the pFEIS for review and comment within MoDOT and to FHWA and cooperating agencies. Once comments are received, the pFEIS is revised and then MoDOT submits the FEIS to FHWA for approval. The approved FEIS is circulated to others for review and comment. FHWA circulates the approved FEIS to the EPA along with an NOA to be published in the Federal Register, initiating a 30-day comment period on the FEIS.

Substantive comments on the FEIS are addressed in a Record of Decision (ROD). The ROD also discusses the alternates that were considered for the project, identifies the selected alternate, and discusses why this alternate 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 MHTC can approve the location of the project and detailed design can begin following location approval. A flow chart showing this process is available.

The primary district responsibility in the creating an in-house environmental document is to prepare and submit a Location Study to the Design Division. The Design Division then incorporates this document into the pDEIS using an appropriate format. If the environmental document is to be prepared by consultant, the district normally oversees the selection of the consultant and preparation of the scope of work and will involve the environmental and historic preservation staff in this process.

Timeframes

MoDOT does not prepare many EISs, except on the most complex or controversial projects. Consultants prepare most EISs and the timeframe for completing the EIS process varies. The timeline for completing consultant-prepared EAs and EISs is a negotiated item within the scope of work. The central office environmental and historic preservation staff, FHWA, and participating agencies should be involved in the discussions leading to timeframes stipulated for completion of EAs and EISs. For EISs, a good rule of thumb is to allow at least 3 years to get to an approved ROD. Click here to view details on required availability and comment periods.

127.14.1.3.4 Legal Sufficiency Review

All Draft and Final EISs and all Draft and Final Section 4(f) Evaluations will undergo an additional review for legal sufficiency. Although the Missouri division office of the FHWA conducts the general review of NEPA documents, regulation requires a legal sufficiency review by FHWA Headquarters Office of Chief Counsel. FHWA regional office staff attorneys generally complete this review. 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 may consider conducting the legal sufficiency review concurrent with the Missouri division office review based upon their comfort with the quality of the document.

127.14.1.3.5 FHWA/MoDOT Environmental Partnering Agreement

The FHWA and MoDOT signed a partnering agreement on environment that charges MoDOT's central office environmental and historic preservation units with the primary responsibility for ensuring that MoDOT performs in accordance with state and federal environmental laws and regulations while implementing the mission, values, and tangible results outlined in MoDOT's Tracker. The agreement further states that the environmental and historic preservation units are to function as a liaison between FHWA and MoDOT district offices and/or project consultants. MoDOT district staff and consultants are not to ask FHWA environmental staff for approvals or NEPA classification decisions without the involvement of MoDOT's Central Office staff. Since NEPA action requests may be coming from ten districts, central office staff ensures FHWA priorities are established in an orderly manner. Every effort should be made to ensure that MoDOT information provided to FHWA has the concurrence of both MoDOT districts and MoDOT Central Office.

The partnering agreement establishes FHWA review times for specific NEPA document types. MoDOT district staff must ensure that project schedules developed internally and by consultants will accommodate these specified review times. The review times are predicated on the assumption that all documents related to the defined tasks will be quality documents that are complete and accurate.

127.14.1.3.6 Projects Involving New or Revised Interstate Access

Section 111 of Title 23, United States Code (23 USC 111) requires FHWA approval of proposed new or revised Interstate access before such access modifications can be made. This approval is a two-step process consisting of Concept Approval and Final Approval. MoDOT requests concept approval from FHWA via an Access Justification Report (AJR). Once concept approval is obtained, the final approval is automatic after the NEPA requirements have been fulfilled assuming no significant changes have been made to the original concept. The district is responsible for preparation of the AJR and may choose to use MoDOT staff or a consultant for this task. Further details on AJR requirements are contained in FHWA POLICY AND PROCEDURES FOR NEW OR REVISED INTERSTATE ACCESS APPROVAL IN MISSOURI.

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

  • To be truly 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.
  • Most maintenance activities are not subject to NEPA.
  • Off-system projects that receive federal aid are subject to NEPA compliance.

127.14.1.4.1 Non-Federal Actions

NEPA classification and compliance is required for all MoDOT projects where federal aid funding is utilized for any purpose, be it planning, design, right-of-way acquisition, or construction. Generally, non-federal actions are those that do not utilize U.S. DOT funding sources or projects that FHWA has determined do not require their oversight. FHWA usually maintains oversight on any project that involves the interstate system, regardless of whether or not federal-aid funding is involved. Non-federal actions do not require NEPA classification and compliance. However, all MoDOT projects that have a project number or that appear on the STIP will require NEPA classification and compliance. The reason for this is some projects start out with no federal aid anticipated for any facet of project delivery; if that should change, scheduling constraints may make it difficult to obtain the required NEPA approvals in a timely manner. Therefore MoDOT has determined that all STIP projects will be NEPA compliant.

127.14.1.4.2 Maintenance

Any MoDOT maintenance project that appears in the monthly letting is subject to NEPA and environmental compliance. The majority of other maintenance activities are not subject to NEPA. The environmental and historic preservation staff will assist the maintenance and traffic divisions with environmental compliance and routinely do so on issues related to physical assets (e.g., maintenance sheds).

127.14.1.4.3 Off-System Projects

The NEPA and environmental compliance process for off-system projects is included in the Local Public Agency (LPA) Manual. Generally, MoDOT provides quality assurance/quality control for FHWA on NEPA and environmental aspects of off-system projects.

127.14.1.4.4 NEPA, Scopes of Work, and Consultants

When developing scopes of work for consultant developed environmental documents, it is important not to uncritically copy sections from previously written documents. Every project is different and those differences preclude a cookie-cutter approach to NEPA scope of works. The size of the project and the nature of the project and its relationship to the natural environment should determine the scope of work. For example, rural versus urban projects, the presence of ethnic groups, the nature of prior studies in the project boundaries, and the nature of anticipated resources may result in an inappropriate level of work or missed resources if a boilerplate scope is used in a consultant contract. Additionally, the relationship between MoDOT and agencies such as the State Historic Preservation Office or the Corps of Engineers changes over time and procedures and protocols used in the past may either cause unnecessary project expense or require portions of the environmental document to be re-written. Please contact the appropriate specialist in the Environmental or Historic Preservation units when developing a scope of work.

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