Difference between revisions of "LPA:136.6 Environmental and Cultural Requirements"
m (→136.6.3 Categorical Exclusion (CE): Per Env'l, updated PCE agreement with FHWA)
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|[http://www.achp.gov/archguide.html Advisory Council “Model MOA”]
|[http://www.achp.gov/archguide.html Advisory Council “Model MOA”]
|[://epg.modot./forms/DE-Env&Cultural/Categorial%20Exclusion%20Form.dot Categorical Exclusion Determination]
|[http://www.dnr.mo.gov/forms/780-1718_inst.pdf Instructions for Completing the SHPO 106 Survey Memo]
|[http://www.dnr.mo.gov/forms/780-1718_inst.pdf Instructions for Completing the SHPO 106 Survey Memo]
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An agreement with FHWA allows MoDOT to automatically classify specific types of projects that require no more than 5 acres of new right of way and/or easements combined, or exceeds one of the thresholds, as PCEs. PCEs do not require FHWA review. MoDOT and FHWA executed the newest [[media:127.14.3.1 2021.pdf|programmatic agreement]] on September 22, 2021. The thresholds that cannot be exceeded are contained within the agreement. If a project exceeds one of the thresholds, a CE2 must be approved by FHWA.
An agreement with FHWA allows MoDOT to automatically classify specific types of projects that require no more than 5 acres of new right of way and/or easements combined, or exceeds one of the thresholds, as PCEs. PCEs do not require FHWA review. MoDOT and FHWA executed the newest [[media:127.14.3.1 2021.pdf|programmatic agreement]] on September 22, 2021. The thresholds that cannot be exceeded are contained within the agreement. If a project exceeds one of the thresholds, a CE2 must be approved by FHWA.
For projects that require over 5 acres of new right of way and/or easements combined, or exceeds one of the thresholds, MoDOT will advise the LPA to complete a [
For projects that require over 5 acres of new right of way and/or easements combined, or exceeds one of the thresholds, MoDOT will advise the LPA to complete a [://epg.modot./forms/DE-Env&Cultural/Categorial%20Exclusion%20Form.dot CE2 Form] describing the project, the impacts expected from the project, and mitigation to compensate for the project’s impacts. The Form requests information such as the federal project number, route, county, project termini and length, project description, current and future average daily traffic (ADT), right of way and easement needs, displacements/relocations, a location map, and any other associated attachments. [[media:136.6.5.pdf|Fig. 136.6.5, Instructions for Preparing a CE2 Form]], guides the LPA through the process. For FHWA to concur that the project is a CE2 instead of an EA or EIS, the CE2 document must clearly demonstrate that the project will not have significant impacts and therefore, is categorically excluded from the requirement to prepare an EIS or EA. MoDOT will notify the LPA of the CE2 approval, request for more information, or FHWA’s decision that an EA or EIS needs to be prepared.
=136.6.4 Beyond NEPA—Complying with Other Federal and State Environmental Laws and Regulations=
=136.6.4 Beyond NEPA—Complying with Other Federal and State Environmental Laws and Regulations=
Revision as of 06:56, 26 October 2021
- 1 136.6.1 Introduction
- 2 136.6.2 National Environmental Policy Act (NEPA) Classification
- 3 136.6.3 Categorical Exclusion (CE)
- 4 136.6.4 Beyond NEPA—Complying with Other Federal and State Environmental Laws and Regulations
- 4.1 18.104.22.168 Section 106 (Cultural Resource) Compliance
- 4.2 22.214.171.124 Section 4(f) of the U.S. Department of Transportation Act of 1966 and Section 6(f) of the Land and Water Conservation Fund Act (LWCFA) Properties
- 4.2.1 126.96.36.199.1 Section 4(f) for Historic Properties
- 4.2.2 188.8.131.52.2 Section 4(f) for Public Lands
- 4.2.3 184.108.40.206.3 De Minimis Determination
- 4.2.4 220.127.116.11.4 Programmatic Section 4(f)
- 4.2.5 18.104.22.168.5 Section 4(f) Evaluation Process
- 4.2.6 22.214.171.124.6 Section 6(f) of the Land and Water Conservation Fund (LWCF) Act and Similar Grant Programs
- 4.3 126.96.36.199 Section 404 Permits for Wetlands and Streams
- 4.4 188.8.131.52 Channel Modification
- 4.5 184.108.40.206 Threatened and Endangered Species and Migratory Birds
- 4.5.1 220.127.116.11.1 Laws and Regulations
- 4.5.2 18.104.22.168.2 Process
- 4.5.3 22.214.171.124.3 Migratory Birds
- 4.6 126.96.36.199 Base Floodplain and Regulatory Floodway
- 4.7 188.8.131.52 State Emergency Management Agency (SEMA)/Federal Emergency Management Agency (FEMA) Buyout Lands
- 4.8 184.108.40.206 Stormwater and Erosion Control
- 4.9 220.127.116.11 Borrow Sites and Other Land Disturbance Activities Outside Right of Way
- 4.10 18.104.22.168 Hazardous Waste
- 4.11 22.214.171.124 Farmland Protection Policy Act
- 4.12 126.96.36.199 Community Impact Assessment (Social/Economic/Environmental Justice)
- 4.13 188.8.131.52 Noise Standards and Noise Abatement
- 4.14 184.108.40.206 Air Quality Requirements
- 5 136.6.5 Environmental Assessment (EA)
- 6 136.6.6 Environmental Impact Statement (EIS)
- 7 136.6.7 Record of Decision (ROD)
- 8 136.6.8 Supplemental Environmental Impact Statements
- 9 136.6.9 Re-evaluations
Meeting environmental and cultural resource requirements and getting the necessary approvals and permits for local public agency (LPA) projects can involve multiple steps and varying lengths of time. Not meeting requirements in a timely manner can delay or even halt your project. You must obtain National Environmental Policy Act (NEPA) approval from the Federal Highway Administration (FHWA) before 35% plan completion. Before you can begin right-of-way acquisition for the project, you need concurrence from the State Historic Preservation Office (SHPO) that Section 106 (cultural resources) has been addressed satisfactorily. Some resources with specific requirements in addition to NEPA include historic buildings, archaeological sites, historic bridges, historic sites and parklands, wetlands and waterbody crossings, endangered species and conversion of farmland. Information on these topics and others can be found in this article and in the NEPA Training video.
Roles and Responsibilities: MoDOT’s role in the project review process is to advise the LPA of requirements that must be met, review any NEPA submittals for completeness before forwarding to FHWA, and ensure that all needed permits, approvals, or other supporting documentation are obtained. The LPA is expected to provide complete and accurate information about the project. Complying with the applicable laws and regulations is the LPA’s responsibility. The LPA interacts with MoDOT through the designated district contact. For the occasional project that is classified as an Environmental Assessment (EA) or Environmental Impact Statement (EIS) under NEPA, a MoDOT environmental staff member will be a liaison between the LPA and FHWA. The liaison participates in project team meetings, is responsible for all communication with FHWA concerning the project, and helps ensure satisfactory compliance with NEPA. A flowchart summarizes the environmental/historic preservation project review process in Figure 136.6.1. The timeframes needed to achieve key environmental/cultural resources compliance milestones are shown below and in Figure 136.6.2 (landscape format to print for reference). Figure 136.6.3 contains a helpful checklist to guide the LPA through this process.
|Key Environmental/Cultural Resources Compliance Milestones|
|Task/Submittal||LPA Responsibility||MoDOT Responsibility||MoDOT Timeframe|
|Obtain NEPA classification||Provide adequate project information with Request for Environmental Review||Provide classification||30 days|
|Complete NEPA documentation if required:
1. Programmatic CE (no documentation required)
2. Letter CE
|Prepare and submit required documentation||Review documentation, provide comments, and submit documentation (revised by LPA as needed) to FHWA||1. Programmatic CE – 4 weeks|
2. Letter CE – 6 weeks
3. CE2 – 10 weeks
4. EA – 18 months
5. EIS – 36 months
|Comply with Section 106 (cultural resources)||Obtain SHPO's concurrence||Ensure Section 106 compliance||Generally, 10 weeks|
* Can take 6–12 months if SHPO finds adverse effect
|Section 4 (f)
1. Historic bridge programmatic
2. Public land prog. or de minimis
3. Full draft and final evaluation
|1. Prepare MOA
2. Provide documentation
3. Provide documentation
|1. Review MOA
2. Review & submit to FHWA
3. Review & submit to FHWW
|1. 6 months|
2. 60 days
3. 12 months
|Comply with Clean Water Act Sections 404 and 401||Obtain permits||Ensure compliance||Nationwide: 6–8 weeks|
Individual: 4–6 months
|Comply with Endangered Species Act||Consult with MDC and obtain clearance letter||Review consultation||1–6 months|
|Floodplains||Contact local floodplain administrator for any needed permits||Ensure compliance||1–6 months|
|Comply with Clean Water Act Section 602||Obtain NPDES permit||Ensure Section 602 compliance||1–3 months|
|Comply with env. laws regarding use of borrow & spoil sites||Comply with applicable laws||Ensure compliance with applicable laws||Varies according to law|
|Hazardous waste||Determine presence, contact DNR if hazardous materials are found||Ensure compliance||1 month|
|Comply with Farmland Protection Policy Act (FPPA)||Obtain Farmland Rating||Ensure FPPA compliance||6 weeks|
|Environmental Justice, Title VI, ADA, etc.||Ensure compliance||Ensure compliance||1 month|
|Noise||Complete noise study if necessary||Ensure compliance||1–6 months|
|Comply with Clean Air Act||Ensure Clean Air Act compliance, model if necessary||Ensure Clean Air Act compliance||6–12 months if modeling required|
|Public Involvement||Provide planned or completed public involvement||Ensure compliance with EPG 129 Public Involvement||1-8 weeks|
136.6.2 National Environmental Policy Act (NEPA) Classification
The LPA must submit the LPA Request for Environmental Review (RER) to the MoDOT district contact within 60 days of preliminary engineering (PE) obligation for all federal-aid projects. Fig. 136.6.4, How to Complete the Request for Environmental Review presents instructions to guide the LPA through the RER process. The RER initiates MoDOT environmental and historic preservation staff’s review of the project to determine the appropriate NEPA classification. The district contact will notify the LPA of the project’s classification as well as other environmental permits and clearances the LPA must obtain.
Since the environmental classification is based on the scope of the project and expected magnitude of impacts, providing all information requested on the form is vital to getting the NEPA classification as early as possible. Whenever the project scope or location changes or more than a year has passed since MoDOT’s environmental and historic preservation staff reviewed the RER, the LPA will submit to the MoDOT district contact a new RER that describes and shows any changes. Based on that information, the project will be reexamined. A completed and approved NEPA document has a limited shelf life of three years from the date on the NEPA document. If construction obligation has not occurred within three years of the date on the NEPA document/date, a new RER must be filled out and reviewed and a new NEPA document/date will be issued. After obtaining approval of a ROD, FONSI, or CE determination and before requesting any major approvals or grants, the LPA shall consult with MoDOT to establish whether the approved environmental document or CE designation remains valid for the requested FHWA action. These consultations will be documented when determined necessary by FHWA.
The basic NEPA classifications are:
- Categorical Exclusion (CE)—typically sufficient for projects that do not individually or cumulatively have a significant environmental effect. Most projects will be classified as CEs.
- Environmental Assessment (EA)—required for projects in which the environmental impact is not clearly established. Projects such as a two-lane relocation or adding lanes to an existing highway corridor generally require an EA.
- Environmental Impact Statement (EIS)—required for projects that may have significant adverse impacts or that are controversial. Projects such as a new controlled-access freeway, a highway project of four or more lanes on a new location, or new construction or extension of a separate roadway for buses or high occupancy vehicles not located within an existing highway facility typically require an EIS.
136.6.3 Categorical Exclusion (CE)
The majority of transportation projects in Missouri are classified as categorical exclusions (CEs) and are completed as a programmatic CE (PCE) or a CE2. Approximately 96% of LPA projects have been classified as programmatic CEs, with the remainder classified as CE2s and very rarely as an EA or EIS (see EPG 127.14.5 NEPA Glossary).
An agreement with FHWA allows MoDOT to automatically classify specific types of projects that require no more than 5 acres of new right of way and/or easements combined, or exceeds one of the thresholds, as PCEs. PCEs do not require FHWA review. MoDOT and FHWA executed the newest programmatic agreement on September 22, 2021. The thresholds that cannot be exceeded are contained within the agreement. If a project exceeds one of the thresholds, a CE2 must be approved by FHWA.
For projects that require over 5 acres of new right of way and/or easements combined, or exceeds one of the thresholds, MoDOT will advise the LPA to complete a CE2 Form describing the project, the impacts expected from the project, and mitigation to compensate for the project’s impacts. The Form requests information such as the federal project number, route, county, project termini and length, project description, current and future average daily traffic (ADT), right of way and easement needs, displacements/relocations, a location map, and any other associated attachments. Fig. 136.6.5, Instructions for Preparing a CE2 Form, guides the LPA through the process. For FHWA to concur that the project is a CE2 instead of an EA or EIS, the CE2 document must clearly demonstrate that the project will not have significant impacts and therefore, is categorically excluded from the requirement to prepare an EIS or EA. MoDOT will notify the LPA of the CE2 approval, request for more information, or FHWA’s decision that an EA or EIS needs to be prepared.
136.6.4 Beyond NEPA—Complying with Other Federal and State Environmental Laws and Regulations
The resource-specific information that follows is intended to aid the LPA in complying with federal and state environmental laws and regulations. Ultimately, the LPA is solely responsible for compliance with all applicable laws and regulations, regardless of the information, or lack thereof, included here. The LPA must ensure that all commitments specified in environmental documents are identified in plans and job specifications as appropriate. The LPA is also responsible for implementing all commitments and monitoring included in environmental documents.
220.127.116.11 Section 106 (Cultural Resource) Compliance
|Useful Section 106 Websites|
|Advisory Council on Historic Preservation|
|Missouri State Historic Preservation Office|
|Federal Highway Administration|
|MoDOT Historic Preservation Section|
Section 106 of the National Historic Preservation Act (NHPA) of 1966 requires the consideration of the potential impacts of federally funded or permitted projects to significant cultural resources. Cultural resources include archaeological sites, buildings, structures (e.g., bridges), objects or historic districts. The significance of a cultural resource is evaluated by applying a specific set of criteria that is set forth by the National Register of Historic Places. Cultural resources that meet the criteria of eligibility for listing on the National Register are referred to as “historic properties.” Failure to comply with Section 106 requirements could jeopardize federal funding and permits for a project. Section 106 encourages, but does not mandate, the preservation of historic properties. The goal of Section 106 is to ensure that preservation values are factored into the planning process for all federally funded or permitted projects. Compliance with Section 106 requires three things:
- 1. Identify historic properties. Determine project’s area of potential effects (APE), identify cultural resources within the APE, and evaluate historic significance of these cultural resources;
- 2. Assess adverse effects. Assess if the project will have an adverse effect on historic properties; and
- 3. Resolve adverse effects. Avoidance, minimization, and/or mitigation of any project adverse effects on historic properties.
Fig. 136.6.6 illustrates the steps that the LPAs should follow to comply with Section 106.
18.104.22.168.1 Step 1, Determine Need for Cultural Resource Investigations
The LPA must submit the LPA Request for Environmental Review (RER) within 60 days of preliminary engineering (PE) obligation for all federal-aid projects. Fig. 136.6.4, How to Complete the Request for Environmental Review presents instructions to guide the LPA through the RER process. The RER submittal initiates the Section 106 review.
MoDOT has hired a consultant to oversee the LPA Section 106 compliance. The basic process is:
- 1. The LPA should submit their Request for Environmental Review (RER). The consultant will review the RER and determine if the job Section 106 compliance is covered by the Section 106 agreement document on Minor Highway Projects.
- A. If it is the consultant will state on the RER that the project has Section 106 clearance and list the Stipulation and the date the decision was made.
- B. If the project is not covered by the Minor Highway Projects agreement, the consultant will state on the RER that a Section 106 investigation and submittal to SHPO is required.
- 2. If a Section 106 investigation is required, the LPA will then move to EPG 22.214.171.124.2 Step 2, Cultural Resource Investigations.
- A. The consultant will review the LPA’s (or their consultants) Section 106 submittal before it is sent to SHPO.
- B. If the Section 106 finding is “no historic properties affected” or “no adverse effect to historic properties and the State Historic Preservation Office concurs with this finding the Section 106 process has been completed.
- C. If the finding is “adverse effect to a historic property,” the LPA will then need to negotiate and execute a Section 106 agreement document (e.g., Memorandum of Agreement or Programmatic Agreement).
- 3. If a Section 106 agreement document is required, the LPA will then move to EPG 126.96.36.199.3 Step 3, Preparation of the Memorandum of Agreement.
- The consultant will also oversee the LPA’s (or their consultants) consultation and development of the Memorandum of Agreement.
188.8.131.52.2 Step 2, Cultural Resource Investigations
If the SHPO requests a Section 106 survey the LPA will need to hire a qualified cultural resource consultant or staff member to conduct the survey and to submit a report of their findings to the SHPO.
Step 2a. The Cultural Resource Survey
- a. Cultural resource surveys typically are limited to the area of potential effects (APE) (i.e., For archaeology, this is the maximum footprint of the project consisting of proposed and existing right of way, and permanent and temporary easements) and any off-site areas, if known, (e.g., borrow, staging, wasting, etc.). For architectural resources, the APE may include the limits of the project plus a buffer around the project area so indirect effects of the project are considered (usually 50 ft in urban settings and 100 ft in rural settings).
- For archaeological resources, the APE is the maximum footprint of the project consisting of existing and new right-of-way, and temporary and permanent easements.
- 1. An architectural survey consists of photographing buildings within the architectural APE and providing descriptions and historical information about those buildings constructed more than 50 years ago. In addition to buildings, features associated with a property such as gateposts, hitching posts, outbuildings, signage, etc. should be included in the photographic coverage. Clear photographs, which show the resource clearly, should be included in the survey report. Photographs taken out of car windows or where the resource is hidden behind vegetation are not acceptable.
- 2. A Phase I archaeological survey is an intensive, systematic, investigation of the APE of the proposed project to identify any archaeological site that may be affected by the proposed project. If there is good surface visibility (e.g., a plowed field), archaeological sites may be identified by a pedestrian survey, which consists of archaeologists walking the area to examine what is exposed on the surface. If there is poor surface visibility (e.g., a pasture) the archaeologists use shovel or auger tests to look for artifacts. Shovel tests are small hand-dug holes about 12 inches wide and up to 24 inches deep, while auger tests are 8-inch diameter holes up to 6 feet deep. In most survey areas, shovel tests or auger tests will be excavated at 50 foot intervals. The excavated soil is examined for artifacts and other evidence of prehistoric or early historic archaeological sites.
- Phase II archaeological site testing will be needed if any potential National Register eligible sites are encountered in the APE that could be impacted by the proposed project. The Phase II is a limited archaeological excavation of a site to determine its significance and whether it meets National Register eligibility standards. The standard method for testing an archaeological site is the hand-excavation of test units. Test Units are usually 3 ft. x 3 ft. or 3 ft. x 6 ft. in size and are dug usually to a depth of 3 to 4 feet. These test units are excavated to search for intact artifact deposits and/or features (e.g., hearths, storage pits, hut basins, etc.) that would provide information about the people whose activities had created the site. The archaeological consultant will need to consult with SHPO and MoDOT on the proposed Phase II testing strategy before it is implemented. A Phase II investigation takes approximately 1-2 weeks per site.
- b. Reporting the results of the cultural resource survey should follow the SHPO “Guidelines for Contract Cultural Resource Survey Reports”. The standard method to submit the results is the SHPO Section 106 Memo. Directions in completing this memo are provided on SHPO’s website. Additional SHPO guidance on requirements for architectural surveys is posted on the SHPO website, including the Architectural/Historic Inventory Form that should be used for buildings that are believed to be eligible for listing on the National Register of Historic Places.
- c. The Section 106 submittal will be reviewed and commented on by SHPO. SHPO has by law 30 calendar days to respond.
- 1. If no cultural resources were identified, the SHPO usually will respond “no historic resources affected.” The Section 106 process is complete and no further action is necessary.
- 2. If cultural resources were identified, their eligibility for the National Register of Historic Places (National Register) must be determined.
- 3. In some cases, additional field investigations and /or historical research may be required for the cultural resource professional to determine resource eligibility.
The SHPO comments only apply to the project as submitted. Any changes to the project may require a supplemental submittal to SHPO regarding these changes (e.g., project limits, significant modifications to the nature of the project, etc.). Any subsequent communication with SHPO should include the Project Number assigned by SHPO to the original submittal.
If human remains are encountered during any fieldwork, the LPA and consultants must comply with state burial laws (RSMO 194 – unmarked remains or RSMO 214 – cemeteries). This requires initially contacting local law enforcement. If the human remains are not part of a crime scene, jurisdiction of the remains and disturbance of them falls on either local courts (RSMO 214) or the SHPO (RSMO 194). Consultation with appropriate American Indian tribes should be required if the human remains are believed to be of Native Americans – either prehistoric or historic. The LPA must contact FHWA prior to any consultation with Indian tribes. FHWA, as the Federal agency, is legally responsible for the tribal consultation process. The LPA may only consult directly with an Indian Tribe if authorized by FHWA.
Step 2b. Determination of Eligibility
If cultural resources are present, the LPA, in consultation with SHPO and FHWA/MoDOT, determines whether a cultural resource meets the eligibility requirements of the National Register. A cultural resource professional may need to conduct additional investigations to evaluate the eligibility of some resources. The cultural resource professional will need to consult with the MoDOT Historic Preservation staff on the proposed testing plan for an archaeological site before implementing it.
Readily available information can often be used to determine the National Register eligibility of identified cultural resources. This information should consist of the results of the cultural resource survey, any subsequent investigations, or other available information such as pictures and available history of structures. If the adverse effects to the potentially National Register eligible cultural resource cannot be avoided by the project the National Register eligibility determination is included in the Section 106 submittal.
- a. The SHPO is requested to concur or disagree with the National Register eligibility of a cultural resource. The cultural resource professional should provide an assessment of resource eligibility.
- b. If SHPO, LPA, and FHWA/MoDOT agree that a cultural resource is not eligible for the National Register, the Section 106 process is complete. No further action is necessary.
- c. If SHPO, LPA, and FHWA/MoDOT agree that a cultural resource is eligible for the National Register, a determination of effect (Step 2c) is made next.
- 1. If SHPO, LPA, and FHWA/MoDOT disagree on the eligibility of a resource, the LPA should request the FHWA to contact the Keeper of the National Register of Historic Places (Keeper) for a definitive opinion. If the FHWA decides that the Keeper needs to be consulted they will provide the LPA with a list of the required documentation. This process can be lengthy (up to six months), so it should be avoided if possible.
- 2. If the Keeper finds that the resource is not eligible, the LPA no longer needs to consider the project’s effects to that specific resource.
Step 2c. Determination of Effect
If historically significant cultural resources are present, the LPA, FHWA/MoDOT, and SHPO will determine the effect of the project on each National Register eligible property (called “historic property”).
The effect of a project on a historic property should be determined through consultation among the LPA, SHPO, and FHWA/MoDOT, using the criteria of adverse effects found at 36CFR800.4(1) and the examples of adverse effects found at 36CFR800.4(2). There will be a determination of either “no historic properties affected,” “no adverse effect” or “adverse effect.” The LPA will provide its opinion regarding effect along with its evaluation of eligibility to the SHPO for their concurrence. If the SHPO concurs with the LPA, this finding will be transmitted to the FHWA. If there is a disagreement among the LPA and SHPO, FHWA and MoDOT may be brought into the discussions to help facilitate an agreement.
- a. No Adverse Effect – If the finding is that the project effect is not adverse upon the historic property(ies), the Section 106 process is complete.
- b. Adverse Effect – If the project effect is adverse to the historic property(ies) (i.e., adversely affecting the characteristics that make it eligible for listing on the National Register), the LPA will consult with the SHPO on avoidance or mitigation of the adverse effect. It may be possible to redesign portions of the project to avoid adverse impacts to the historic property. The LPA will explore avoidance options, continued use, or rehabilitation of the historic property (not necessary for most archaeological sites). In addition, the public (interested parties, holders of permits, owners of affected lands, and private individuals) may be allowed to review and comment on the project, and participate in the decision-making process.
If the SHPO concurs with the results of the Section 106 Survey submittal being “no historic properties affected” or “no adverse effect to a historic property,” Section 106 compliance is completed. The date of the SHPO letter would be used as the Section 106 compliance date. If the result of the survey is “adverse effect to a historic property” the LPA precedes with Steps 3 and 4.
If the project changes after receipt of the SHPO letter with a “no historic properties affected” or “no adverse effect to a historic property” concurrence, the project must be resubmitted to the SHPO with the changes to the project identified. A change in the scope of the project may change the effects of the project on historic properties.
In instances where a project has an adverse effect, prior to continuing to the next step, the Advisory Council on Historic Preservation (Council) must be notified of the adverse effect and be invited to participate in consultation for the development of a Memorandum of Agreement (MOA). The LPA Project Checklist for Adverse Effects for Addressing Adverse Effects under Section 106 and “use” under Section 4(f) summarizes the steps the LPA must complete and which agencies will be involved in reviewing information. The LPA should complete the e106 form following the Directions, except leave Section 4 blank (see Fig. 136.6.15, the example e106 form). The form should be e-mailed, along with supporting documentation to MoDOT for review. Once the form meets MoDOT approval, it will be forwarded to FHWA to be submitted to the Council, which has two weeks to respond.
The Council will become involved in consultation if the project has:
- 1. Substantial impacts on historic properties, meaning that nationally significant properties or unusual properties are present or there are a large number of properties being affected by the project, including multiple properties within a historic district;
- 2. They may become involved if the project presents questions about Section 106 policy or how the Section 106 regulations are interpreted;
- 3. The project has the potential for presenting procedural problems. Procedural problems could include substantial public controversy, disputes among the consulting parties, likely litigation, or requests for Council involvement by consulting parties; or
- 4. The project presents issues of concern to Indian tribes.
If an adverse effect cannot be avoided for certain kinds of historic properties, FHWA may determine that a Section 4(f) evaluation must be completed. Cultural resources requiring Section 4(f) evaluation are typically architectural or bridge resources, or archaeological sites that warrant preservation in place (usually mortuary sites). Section 4(f) of the Department of Transportation Act of 1966 states that a transportation project requiring the use of publicly owned land of a public park, recreation area, wildlife and waterfowl refuge, or a historic site (i.e., a “historic property” as defined by Section 106) may be approved only if:
- 1) There is no prudent and feasible alternative to using that land; and
- 2) The project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.
Section 4(f) is unique to Department of Transportation projects and is a process that can take up to 12 months. The LPA should make sure it works closely with MoDOT and FHWA if there is a possibility of a need for a Section 4(f) Evaluation. Information on the Section 4(f) Evaluation process is provided elsewhere in EPG 136, however if the project is a bridge replacement and the only Section 4(f) issue is the bridge, MoDOT Historic Preservation will complete the Programmatic Section 4(f) evaluation documentation for FHWA review, using information provided by the LPA.
184.108.40.206.3 Step 3, Preparation of the Memorandum of Agreement
If historic properties will be adversely affected by the project, the LPA will coordinate with the MoDOT Historic Preservation staff, SHPO and FHWA in preparation of a Memorandum of Agreement (MOA). Section 106 is not complete until an MOA is executed and the stipulations are completed.
The steps involved in developing an MOA and providing the information necessary for a Programmatic Section 4(f) Evaluation (if the adverse effect is to a historic bridge) are also detailed in the LPA Project Process Checklist for Addressing Adverse Effects under Section 106 and “use” under Section 4(f).
If adverse effects to a historic property cannot be avoided, a MOA will be prepared through consultation with LPA, FHWA, MoDOT, the SHPO, and other appropriate consulting parties. The MOA will document the stipulations to be carried out to mitigate the adverse effect upon the historic property(ies), including the appropriate level of documentation for the resource. If the resource is a bridge, the Levels of Bridge Documentation (State Level) for Section 106 Mitigation of Adverse Effect (Bridge Documentation Standards) should be referenced including the level at which the bridge will be documented. It is a legally binding agreement document that is signed by the signatory parties (usually the FHWA, SHPO and the LPA). Fig. 136.6.7 provides an example of a MoDOT bridge MOA and the e106 form. In addition, the Council provides a “model MOA” for archaeological data recovery on its website.
If the adverse effect is to a Native American archaeological site, the FHWA must consult with the Indian tribes with a historical interest in the project area and provide them an opportunity to participate in the consultation process.
- a. The MOA process is started by the LPA’s preparation and submittal of a draft MOA and the e106 form updated to include consultation that may have occurred on the project since the Council notification occurred, and an Alternatives Analysis (for bridge projects). The documents are forwarded to MoDOT Historic Preservation for review and comment.
- b. The Alternatives Analysis must include the following information (for additional information on the alternatives that must be considered, consult the FHWA Programmatic Section 4(f) Web-page):
- 1. A description of the purpose and need for the project;
- 2. A description of the current condition of the bridge;
- 3. A discussion of the do nothing alternative
- 4. A discussion of the rehabilitation option for the bridge;
- 5. A discussion of an alternative that would save the bridge by realigning the road to avoid the bridge;
- 6. A discussion of an alternative that would relocate the bridge to another location to save it (can include discussion of the advertising efforts and their results)
- 7. Rough cost estimates for the alternatives, including construction and right of way.
- c. When the MOA is satisfactory, MoDOT will inform the LPA, SHPO and FHWA that it is satisfactory. If the Council has responded, the LPA can begin the process of signing the MOA. The LPA should prepare a copy of the MOA for each signatory.
- d. If the adverse effects are to a Native American archaeological site, FHWA will provide a copy of the draft MOA and accompanying information to Indian tribes with historical interest in the project area or attach religious and cultural significance to the site to provide them the opportunity to participate in the consultation process.
- e. The LPA will send the signed MOA to the SHPO, using text similar to the sample letter and copy MoDOT and FHWA on the transmittal letter. The SHPO will sign the MOA and forward it to the FHWA for execution, copying MoDOT and the LPA on the transmittal letter. The MOA is considered to be executed upon FHWA signature, who is the last party to sign the document (general signatory order is LPA, any other invited signatories, SHPO and then FHWA).
- f. Once the MOA is executed, MoDOT will prepare the Programmatic Section 4(f) evaluation for bridge projects and submit it to FHWA (see the LPA Project Process Checklist for Addressing Adverse Effects under Section 106 and “use” under Section 4(f) for further details of how Section 4(f) fits into the Section 106 process).
If Steps 3 and 4 are required, the date the MOA is executed can be used as the Section 106 compliance date when requesting authorization to proceed from MoDOT and FHWA.
220.127.116.11.4 Step 4, Mitigation of Adverse Effect
The LPA will implement and fulfill the stipulations of the MOA. Ultimately, the SHPO must concur that the stipulations of the MOA have been satisfied.
Following the execution of the MOA, the LPA will implement stipulations of the MOA to mitigate the adverse effects upon the historic property(ies). The following mitigation measures have been used on various projects:
Bridges and Architectural Resources
The LPA and FHWA consult with the SHPO to determine the level and kind of documentation required for the historic property during the development of the MOA: Historic American Engineering Record (HAER) documentation, Historic American Building Survey (HABS) standards, or state-level documentation, as identified in the Levels of Bridge Documentation (State Level) for Section 106 Mitigation of Adverse Effects (Bridge Documentation Standards). For most of these historic properties the state-level documentation is selected as the preferred method for recordation.
Bridges are advertised (in compliance with MAP-21) for availability and offered to interested parties for reuse in place or at an alternate location, but will be demolished if no one expresses a reasonable interest. The bridge should be advertised on MoDOT’s Free Bridges webpage for a minimum of 60 days, which can be done in coordination with MoDOT Historic Preservation staff, as well as direct marketed to local governments, historical or preservation societies and trail groups in the area. The SHPO should be consulted regarding the agencies the bridge will be direct marketed to (this can be done as part of the MOA consultation). The transfer of ownership or demolition of the bridge occurs after the archival photographs, or the selection of photographs, has been accepted by the SHPO as adequate for the resource.
The specific HABS/HAER guidelines can be found at the National Park Service’s Heritage Documentation Programs website, but the basic documentation usually includes:
- 1. Copies of original plans or drawings. If copies of the original plans are not available, measured drawings may be produced at a precise scale from actual dimensions recorded in the field. Drawings may be produced either by hand or with computer-aided drafting.
- 2. Large-format photographs are produced as contact prints from 4x5 and 5x7 black-and-white negatives and color transparencies. The formats allow maximum enlargement with minimal loss of detail and clarity, and the black-and-white processing allows for archival stability.
- 3. Written histories place the site or structure within the appropriate context, addressing both the historical and the architectural or engineering aspects of its significance.
Bridges should be documented to the Bridge Documentation Standard designated in the MOA. Guidance for researching, describing and photographing a historic bridge can be found in How to Document a Historic Bridge for Mitigation.
- If the SHPO recommends that the historic property be documented to the state level of documentation, the following information should be provided:
- 1. 8 in. X 10 in. high-resolution black-and-white digital images (>600 dpi) to fully document overall views and details of the historic property. Photographs should be taken and processed according to standards for photographs accompanying National Register documentation, including the appropriate considerations for paper and ink. It is a good idea to identify the paper and ink used, if possible. Digital, archival standard, compact discs with all views will be provided.
- 2. A historic narrative and technical descriptions for the historic property.
- 3. Plans or drawings for the historic property; specifically, floor plans for the historic building if it is architecturally significant and/or a copy of the original engineering construction plans for the historic bridge.
- 4. The final documentation shall be provided to the SHPO along with archival digital discs containing the TIFF images and report PDF. Additional copies shall be provided to appropriate local historical groups, and retained by the LPA. Bound copies and/or CDs of the final documentation also will be available to others upon request.
The guidelines for State Level Bridge Documentation Standards are available. The general standards are described below. For all state level documentation photographs taken to NRHP standards are required.
- 1. Level I documentation is for major rivers and their tributaries and includes in depth documentation of the history of the bridge, including describing its planning process, how it influenced social history, commerce, and other broad patterns of history. 8X10 inch photographs, bridge plans, and a bridge description are required.
- 2. Level II documentation is a moderate level of documentation for small rivers and major creeks, with no significant association with historical events. It is anticipated that most bridges will be documented at this level. Historical documentation should document the engineering and transportation significance of the bridge including the planning for the bridge. 8X10 inch photograph, bridge plans and a brief description are required.
- 3. Level III documentation consists of a well-documented inventory form with citations, and will be used for bridges over small streams away from populated areas, lettered routes in rural areas, and for bridges that may contribute to a historic district but not be individually eligible. The documentation includes 8X10 inch photographs, bridge plans and a bridge description.
- 4. Level IV documentation is for bridges over small streams, creeks, highways or railroad crossings, that are not individually eligible but contribute to a larger historic property, and which have a low level of integrity; it is anticipated that few bridges will qualify for this level of documentation. This documentation consists of a documented inventory form, bridge plans and 5X7 inch photographs.
If the adverse impacts to a National Register eligible archaeological site cannot be avoided (e.g., changes in roadway alignment, fencing, and burial under roadway fill) the usual mitigation measure is data recovery (i.e. site excavation). Excavation activities are typically limited to within the project limits. The guidance outlined in the Council’s publication, Recommended Approach for Consultation on the Recovery of Significant Information from Archaeological Sites, should be followed in developing an archaeological data recovery plan. If a site is excavated, a qualified archaeologist must conduct the field investigations, analyze the remains, and prepare a Phase III data recovery report. Artifacts from excavations are the property of the LPA and must be curated at an archaeological curation facility. If human remains are encountered during the excavation, SHPO must be contacted and the state burial law (RSMO 194) will need to be followed. Notification of the human remains should also be provided to FHWA and may need to be provided to consulting Indian tribes.
In addition to the documentation materials for the SHPO and FHWA, and the National Park Service's Heritage Documentation Program for HAER and HABS, additional copies may be needed for distribution to local repositories (historical society or local library) and interested parties.
If Steps 3 and 4 are required, then the date that FHWA signed the MOA is used as the Section 106 compliance date.
18.104.22.168 Section 4(f) of the U.S. Department of Transportation Act of 1966 and Section 6(f) of the Land and Water Conservation Fund Act (LWCFA) Properties
Section 4(f) of the U.S. Department of Transportation Act of 1966 requires that special consideration be given to publicly owned lands, or those held under a long-term lease, that are intended for use as public parks, recreation areas, or wildlife and waterfowl refuges as well as to publicly and privately owned historic sites listed or eligible for listing on the National Register of Historic Places. Codified at 49 U.S.C. 303, Section 4(f) applies to projects that receive funding from or require approval by a Department of Transportation (DOT) agency such as FHWA.
It is the LPA’s responsibility to establish whether the project will require the use of or impact any Section 4(f) resources. The LPA will evaluate possible use of Section 4(f) resources early in the development of a project, when various alternatives for the proposed project are being considered. Ultimately, FHWA makes all decisions regarding Section 4(f) compliance for highway projects: whether Section 4(f) applies to a property, whether a use will occur, whether a de minimis impact determination (discussed below) is made, assessment of each alternative’s impacts to Section 4(f) properties, and (after consulting with the appropriate officials who have jurisdiction) whether the law allows selection of a particular alternative.
Before FHWA approves a project that uses Section 4(f) property, either the use must be determined to be de minimis or a Section 4(f) Evaluation must be completed. If the Section 4(f) Evaluation identifies a feasible and prudent alternative that completely avoids Section 4(f) properties, that alternative must be selected. If there is no feasible and prudent alternative that avoids all Section 4(f) properties, FHWA has some discretion in selecting the alternative that causes the least overall harm. FHWA may approve the use of land (permanent or temporary) from a Section 4(f) resource only if:
- 1. There is no feasible and prudent avoidance alternative to the use of land from the property and
- 2. The action includes all possible planning to minimize harm to the property resulting from such use.
22.214.171.124.1 Section 4(f) for Historic Properties
To determine the applicability of Section 4(f) to historic sites, the LPA will consult with the FHWA (through the MoDOT district and MoDOT Historic Preservation staff), SHPO, and appropriate local officials to identify all properties listed on or eligible for the NRHP. The Section 4(f) requirements apply only to NRHP-listed or eligible properties that will be adversely affected, including archaeological sites chiefly significant for preservation in place, not data recovery.
126.96.36.199.2 Section 4(f) for Public Lands
If the federal, state, or local officials having jurisdiction over a park, recreation area, or refuge determine that the entire site is not significant, consideration under Section 4(f) is not required. The Section 4(f) land is presumed significant without such a determination and FHWA will decide whether Section 4(f) applies. The LPA must complete the Local Public Agency Section 4(f) compliance worksheet (for parks/refuges only) found in Fig. 136.6.8.
For federal or other public land holdings (e.g., state forests) that are managed for multiple uses under statutes permitting such management, Section 4(f) applies only to those portions of such lands that function for or are designated in the plans of the administering agency as being for significant park, recreation, or wildlife and waterfowl refuge purposes. The officials having jurisdiction over the lands determine which lands so function or are so designated, and the significance of those lands. FHWA reviews this determination to assure it is reasonable. The determination of significance applies to the entire area used for such park, recreation, or wildlife and waterfowl refuge purposes.
188.8.131.52.3 De Minimis Determination
A de minimis finding means that a transportation use of a Section 4(f) property will cause minimal impact to the resource after considering impact avoidance, minimization, and mitigation or enhancement measures. If FHWA determines that the use of Section 4(f) land will have no adverse effect on the protected resource and obtains written agreement to such determination from the responsible official(s) with jurisdiction over the resource, an analysis of avoidance alternatives is not required and Section 4(f) is complete. Although a de minimis impact determination does not require evaluating whether avoidance alternatives are feasible and prudent, FHWA does consider any impact avoidance, minimization, and mitigation or enhancement measures that are included in the project to address the impacts and adverse effects on the Section 4(f) resource. The purpose of taking such measures into account is to encourage incorporating Section 4(f) protective measures as part of the project. De minimis impact findings are expressly conditioned upon implementation of any measures that were used to reduce the impact to a de minimis level. The LPA is responsible for ensuring such measures are implemented.
The de minimis impact criteria for historic sites are different from those for parks, recreation areas, and wildlife and waterfowl refuges. De minimis impacts on historic sites are defined as either a “no adverse effect” determination or “no historic properties affected” in compliance with Section 106 of the NHPA. De minimis impacts relative to publicly owned parks, recreation areas, and wildlife and waterfowl refuges are those that do not adversely affect the activities, features, or attributes of the resource.
In making a de minimis impact finding, FHWA must consider the facts supporting a de minimis impact determination, the record of coordination that precedes the de minimis finding, and the concurrence of the official(s) with jurisdiction. FHWA has the ultimate responsibility of ensuring that de minimis impact findings and required concurrences are reasonable. If FHWA makes a de minimis determination, the MoDOT district contact will notify the LPA, who will need to assemble the documentation required to support the finding. Documentation requirements are available. The public must also be afforded an opportunity to review and comment on the effects of the project on the protected activities, features, or attributes of the Section 4(f) property (see EPG 129.8 Section 4(f) Lands).
184.108.40.206.4 Programmatic Section 4(f)
FHWA has approved five nationwide programmatic Section 4(f) evaluations. One covers federal-aid highway projects that use minor amounts of land from publicly owned public parks, recreation areas, or wildlife and waterfowl refuges. A second covers highway projects that use minor amounts of land from historic resources either listed on or eligible for the National Register of Historic Places (NRHP). The third programmatic Section 4(f) covers the use of historic bridges. The fourth is for independent bikeway or walkway construction that requires the use of recreation areas or parkland. The fifth is the net benefit programmatic Section 4(f) evaluation for projects that will use land from a Section 4(f) park, recreation area, wildlife or waterfowl refuge, or historic property and will result, in the view of FHWA and the official(s) with jurisdiction over the Section 4(f) property, in a net benefit to the 4(f) property.
The programmatic Section 4(f) documentation must demonstrate that the project meets applicability criteria for a programmatic evaluation, that avoidance alternatives have been evaluated, that no feasible and prudent alternatives exist, and that appropriate mitigation measures have been included. It must also include correspondence demonstrating that the official(s) with jurisdiction over the Section 4(f) resource agrees with the assessment of impacts and with the proposed mitigation measures. The documentation should be self-contained and self-explanatory since it will be available to the public upon request. With the exception of the programmatic Section 4(f) for historic bridges, a programmatic 4(f) evaluation cannot be used on projects requiring preparation of an EIS.
Using the nationwide programmatic evaluations can streamline the Section 4 (f) process for qualifying projects by eliminating some of the project-by-project internal review and interagency coordination. The applicability criteria for the programmatic Section 4(f) evaluations are available. For projects meeting the criteria, the programmatic Section 4(f) evaluation satisfies the requirements of Section 4(f) and no individual Section 4(f) evaluations need be prepared. The FHWA division office is responsible for reviewing each individual project to determine whether it meets the criteria and procedures of the programmatic Section 4(f).
220.127.116.11.5 Section 4(f) Evaluation Process
When adequate support exists for a Section 4(f) determination and the use of the property does not qualify for a de minimis determination or one of the nationwide programmatic Section 4(f) evaluations, the LPA will complete a Section 4(f) Evaluation. The evaluation must specifically explain why the alternatives to avoid the Section 4(f) property are not feasible and prudent and describe all measures that will be taken to minimize harm to the Section 4(f) property. Supporting information should demonstrate that there are unique problems or unusual factors involved in the use of alternatives that avoid the properties or that the cost, social, economic, environmental impacts, or community disruption resulting from such alternatives reach extraordinary magnitudes.
FHWA will review the final Section 4(f) evaluation for legal sufficiency before issuing an approval. LPAs will not proceed with any project requiring the use of Section 4(f) property and determined to be classified as a CE until notified by FHWA of Section 4(f) approval. For projects classified as EA or EIS, Section 4(f) approval is documented on a separate signature page concurrently with FHWA’s approval of the Finding of No Significant Impact (FONSI) or the final EIS. For EIS projects, the LPA should briefly summarize the Section 4(f) impacts and mitigation measures in the Record of Decision (ROD).
Circulation of a separate Section 4(f) evaluation is required when:
1. A proposed modification to the alignment or design after approval of the CE, EA, FONSI, draft EIS, final EIS, or ROD would require the use of Section 4(f) property;
2. FHWA determines that Section 4(f) applies to a property after approving the CE, EA, FONSI, draft EIS, final EIS, or ROD; or
3. A proposed modification to the alignment, design, or measures to minimize harm after the original Section 4(f) approval would result in a substantial increase in the amount of Section 4(f) land use, a substantial increase in the adverse impacts to Section 4(f) land, or a substantial reduction in mitigation measures.
If FHWA determines that Section 4(f) is applicable after approval of the CE, EA, FONSI, final EIS, or ROD, the decision to prepare and circulate a Section 4(f) evaluation will not necessarily require the preparation of a new or supplementary environmental document. Where a separate circulated Section 4(f) evaluation is prepared, such evaluation does not necessarily:
1. Prevent the issuance of new approvals,
2. Require the withdrawal of previous approvals, or
3. Require the suspension of project activities for any activity not affected by the Section 4(f) evaluation.
Detailed information on preparing a Section 4(f) Evaluation is provided in Fig. 136.6.9.
18.104.22.168.6 Section 6(f) of the Land and Water Conservation Fund (LWCF) Act and Similar Grant Programs
The Land and Water Conservation Fund (LWCF) Act provides funds for the acquisition and development of public outdoor recreation facilities. These could include community, county, and state parks, trails, fairgrounds, conservation areas, boat ramps, shooting ranges, etc. Section 6(f) of the LWCF Act places restrictions on public recreation facilities funded with LWCF monies— LWCF-assisted facilities must be maintained for outdoor recreation in perpetuity. Therefore, use of such property for a transportation project will require mitigation that includes replacement land of at least equal value and recreational utility. Section 6(f) documents are lengthy, frequently taking one to two years to process, and also require a signed Section 4(f) document to be completed.
Section 4(f) de minimis impact findings do not satisfy the requirements of Section 6(f) of the LWCF Act or other U.S. Department of Interior (DOI) grants-in-aid programs. Projects that propose the use of land from a property or site purchased or improved with funds under the LWCF Act, the Federal Aid in Sport Fish Restoration Act (Dingell-Johnson Act), the Federal Aid in Wildlife Restoration Act (Pittman-Robertson Act), or other similar law, or lands otherwise encumbered with a federal interest will require the LPA to coordinate with the appropriate federal agency regarding the agency's position on the land conversion or transfer. Other federal requirements that may apply to the Section 4(f) land should be determined through consultation with the officials with jurisdiction or appropriate DOI or other federal official. These federal agencies may have regulatory or other requirements for converting land to a different use. These requirements are independent of a de minimis impact finding and must be satisfied.
The Urban Park and Recreation Recovery (UPARR) program has provided funds toward the renovation and rehabilitation of numerous urban parks and recreation facilities. Although the UPARR funds may have been used in only a portion of a site or facility or were only a small percentage of the funds needed to renovate or rehabilitate a property, no property improved or developed with UPARR assistance can be converted to other than public recreation uses without the advance approval of the National Park Service. To be approved, a formal request for the conversion must be made by the grant recipient (urban city or county). The request must document that all alternatives to the conversion have been evaluated and rejected on a sound basis, required replacement land being offered as a substitute is of reasonably equivalent location and recreational usefulness, and the property for substitution meets the eligibility requirements for UPARR assistance.
Conversions of land funded by any of the aforementioned grant programs are tightly restricted by terms of the grant agreement and generally require lengthy coordination to meet the requirements for conversion.
22.214.171.124 Section 404 Permits for Wetlands and Streams
Projects that involve stream crossing(s) and/or impacts to wetlands under the jurisdiction of the U.S. Army Corps of Engineers (COE) require a Section 404 Permit or written confirmation that impacts will not trigger submittal of a Section 404 permit application. A Section 404 permit may be required for fill in any water body (waters of the U.S.)—lakes, ponds, streams, rivers, and wetlands. The COE will make a final determination as to the extent of its jurisdiction and the appropriate permit(s) for all regulated activities. If the proposed action impacts a wetland, a determination must be made that there is no practicable alternative to the wetland impact or floodplain encroachment.
The following information is required to satisfy NEPA reporting requirements as they pertain to impacts related to Section 404:
- 1. A description of impacts to all streams, wetlands, and other water bodies.
- 2. All coordination efforts with regulatory and resource agencies to avoid, minimize, and mitigate for impacts.
- 3. Impacts of alternatives to the proposed action.
- 4. Commitments and other mitigation measures for the project.
Stream and/or wetland impacts exceeding 0.5 acre or channelization beyond the minimum necessary to construct or protect the linear transportation project may require an individual permit. If the COE issues an individual Section 404 permit for project activities, the LPA must obtain an individual Section 401 Water Quality Certification from the Department of Natural Resources (DNR). For a nationwide permit (NWP), the LPA is obligated to follow the conditions specific to the appropriate NWP within DNR’s conditional 401 certifications. Most NWPs will not require an individual request for DNR’s Section 401 Water Quality Certification, because the agency has granted conditional certification for the majority of commonly used NWPs. The LPA must include the appropriate 401 certification conditions for their respective NWP(s) in the construction contract (see Item no. 3, below, for link to conditions).
The LPA should send duplicate permit applications concurrently to the COE and DNR for individual Section 404 permits/401 certifications. The COE application must be accompanied by copies of applicable permits, concurrence/clearance letters, or correspondence from resource agencies (particularly U.S. Fish & Wildlife Service for federally listed threatened or endangered species concerns under Section 7 Endangered Species Act (ESA) and the Missouri Department of Natural Resources’ State Historic Preservation Office (SHPO) for Section 106 compliance) verifying any regulatory requirements for the project. Section 404 permit issuance is dependent upon demonstrating compliance with other agencies’ regulatory requirements. This applies to both individual permits and NWPs requiring pre-construction notification. Therefore, Section 7 ESA consultation with the USFWS and Section 106 consultation with the SHPO must be complete before the COE will issue a permit or verify NWP coverage (please see EPG 126.96.36.199 and EPG 188.8.131.52 for detailed information on MoDOT’s role in ensuring ESA and Section 106 compliance on behalf of FHWA). Once the COE is ready to issue the individual permit, it will request 401 certification issuance from DNR. The LPA must include in the construction contract both the 404 and 401 permits and the conditions covered therein. A 404 permit application form is available.
On linear transportation projects where permanent fills impacting waters of the U.S. (not including wetlands) do not exceed 0.1 acre, there is no legal obligation to submit an application to the COE, unless one of the pre-construction notification requirements applies (see NWP descriptions and notification requirements, pages 1983-1998 of the Federal Register). If a project meets the “no pre-construction notification” condition, the LPA must provide a written statement to MoDOT verifying that permanent project impacts will not exceed 0.1 acre and upload that determination to the RER as documentation of such. If either temporary or permanent impacts to wetlands will result from project construction, then a permit submittal is required.
For impacts that exceed the nationwide permit pre-construction notification thresholds, the LPA must obtain a permit from the COE and provide it to MoDOT. In either the no pre-construction notification or the permit application submittal scenario, if NWP(s) apply, then the LPA is required to abide by all of the following conditions and include them in all contract proposals to validate the NWP(s):
1. The 32 Nationwide Permit General Conditions. The 2017 Nationwide Permit Conditions define the general conditions on pages 1998-2004 (under C. Nationwide Permit General Conditions).
2. The Regional Special Conditions for NWPs. The Nationwide Permit (NWP) Regional Conditions are available.
3. The State of Missouri Section 401 Water Quality Certification General & Specific Conditions. The State of Missouri 401 Water Quality Certification conditions for Nationwide Permits are available.
184.108.40.206 Channel Modification
Channel changes alter the conditions of the natural waterway and may increase velocity of the flowing water, sometimes enough to damage the highway embankment near the stream or cause excessive scour around footings of structures. Because channel modifications may result in such outcomes, alterations should be avoided to the fullest extent practical. Where channel alterations are unavoidable, the environmental, hydraulic, legal, and geomorphic aspects involved must be evaluated. The effect on peak flow downstream and the affected flow area should be determined. Relative to Section 404 permitting, any channelization should be kept to an absolute minimum and should only be undertaken to facilitate or protect a construction project. The LPA must include justification for any channel changes in the Section 404 permit application.
1. The new channel should duplicate the existing stream and floodplain characteristics as nearly as possible, including stream width, depth, slope, flow regime, sinuosity, bank cover, side slopes, and flow and velocity distribution.
2. Channel modification may be constructed if the average channel velocity would not be increased beyond the scour velocity of the predominant soil type at the project site.
3. The COE will require individual permit authorization for projects with channel modification beyond the minimum needed to construct or protect the linear transportation project. Such modifications must be in the immediate vicinity of the project and the LPA will be required to do stream mitigation to compensate for the channel loss. This can drastically add to the cost of a project; it may require a monetary contribution to an approved stream mitigation bank/in lieu fee program or the acquisition/restoration and/or, in very limited circumstances, protection of a previously impacted stream resource.
220.127.116.11 Threatened and Endangered Species and Migratory Birds
|Threatened and Endangered Species Program Guidance Videos|
|Chap. 1, Overview and Background Information|
|Chap. 2, Common Field Assessments: Bats and Birds|
|MDC Tutorial: Natural Heritage Review|
|Threatened and Endangered Species Assessments|
|Fig. 136.6.18, Threatened and Endangered Species Federal Aid Transportation Submittal Checklist|
|Fig. 136.6.19, August 2018 MoDOT USFWS Threatened and Endangered Species Habitats|
Threatened and endangered (T&E) species considerations for FHWA funded projects include potential impacts to rare plants, animals, critical habitat, and natural communities (e.g., caves, prairies, karst). FHWA must document compliance with federal and state laws governing potential impacts to listed species. Project sponsors receiving federal aid are required to thoroughly investigate any impacts their projects might have on federally listed T&E species and any federally designated critical habitats.
The state of Missouri also tracks the status of over 1,100 plant and animal species that are considered rare in the state. Of these, 70 are listed as state endangered (current as of the 2019 Missouri Species and Communities of Conservation Concern publication). The state Endangered Species Law and the Missouri Wildlife Code protect state listed species. All FHWA funded projects in Missouri must also address potential impacts to state listed species.
18.104.22.168.1 Laws and Regulations
- The Endangered Species Act of 1973 (ESA) requires FHWA to consult with the U.S. Fish and Wildlife Service (FWS) regarding their projects and measures that can be implemented to minimize or eliminate project impacts to federally protected species and critical habitats. FHWA has designated MoDOT as the only non-federal agency that can conduct ESA Section 7 consultation on their behalf. Project sponsors must provide MoDOT with all the necessary information to document effect determinations for all federally protected species that could occur in the project area. If necessary, MoDOT will complete Section 7 consultation directly with FWS for all projects which May Affect (positively or negatively) federally listed species.
- The National Environmental Policy Act (NEPA) of 1969 (as amended) requires consideration of the physical environment for any project that uses federal funding or requires federal permits.
- The Missouri Revised Statute, Title XXXVIII, Chapter 569 (formerly CH 578, Missouri Cave Resources Act), defines prohibited actions for caves regarding trespass, vandalism, contamination, and destruction.
- The Missouri Revised Statute, Title XVI, Chapter 252, which defines the Missouri Endangered Species Law, and the Missouri Code of State Regulations, Title 3, Division 10, Chapter 4 (Wildlife Code: General Provisions) extend special protections to species that are listed as endangered in the state. The Missouri Department of Conservation (MDC) administers the Wildlife Code which pertains to permissible and prohibited actions for Missouri fish, wildlife, and plants. MDC also tracks locations of federally protected and state endangered species and species and communities of conservation concern in Missouri.
The ESA requires federal agencies to evaluate every project and determine whether it could have a negative impact on any federally listed T&E species or their critical habitat. Sponsors must provide this evaluation to MoDOT for their federally funded projects and give sufficient data to justify their impact assessment for each species that could occur in the project area. T&E information should be made available to MoDOT Design Environmental Section at least 6 months ahead of Plan Submittal and Estimates (PS&E) date. Please refer to the MoDOT T&E Program Guidance videos for examples of how to assess species impacts from your federally funded project.
|FHWA Feb 2015 non-fed designation letter|
Under the ESA, no action can be taken that will jeopardize the continued existence of any federally listed threatened or endangered species or result in the destruction or adverse modification of critical habitat for such species. If an action May Affect a federally listed species or critical habitat, FHWA and MoDOT must consult with the FWS to determine how to eliminate or minimize those impacts.
22.214.171.124.2.1 Sponsor Responsibilities
The sponsor must submit via the Request for Environmental Review (RER) database the completed T&E assessment package in timely manner to allow a reasonable amount of time to obtain clearance for T&E requirements and consultation, which in some case could take up to 6-8 months. Please refer to Fig. 136.6.18 LPA Environmental T&E Checklist, to find the appropriate information to be submitted. NOTE: Threatened and Endangered Species clearance is now required by Missouri FHWA prior receiving NEPA classification approval. (See EPG 136.8 Local Public Agency Land Acquisition).
It is up to the sponsor to produce a written evaluation of their project's impacts on each listed species. The sponsor must demonstrate a basic understanding of the habitat requirements for each species from the FWS official project species list and assess if the same habitat exists in the project area. MoDOT has provided example habitat descriptions for the sponsor to use in evaluating project impacts (Fig 136.6.19). If there is suitable habitat in the project limits, then the project May Affect listed species. The sponsor or their consultant should submit the full project limits, easements, right-of-way, utilities, staging, storage, temporary crossing, and access and ground disturbance information along with aerial photos, plans (if available) and diagrams of the full project impacts.
|Excerpt from Fig. 136.6.18 LPA Environmental T&E Checklist|
|For supplemental instructions, see MoDOT T&E Program Guidance videos.|
The sponsor may be asked to provide additional detailed information about the project which may include contracting for additional species and habitat surveys. The sponsor and/or the consultant may need to work with MoDOT environmental staff to determine measures that could be implemented to minimize the project’s impacts on T&E species. It is important that the sponsor, and not just the consultant, be involved in this process to ensure that suggested changes to the project are feasible and will be implemented. Any measures to minimize or eliminate impacts to T&E species must become contract commitments (i.e., job special provisions, design modifications, plan notes, etc.).
126.96.36.199.2.2 Environmental Section Responsibilities
Upon receiving a completed T&E submittal from the LPA sponsor or their consultant (refer to steps in the T&E Checklist), MoDOT environmental staff will review the project details and impact evaluations from the sponsor and provide a written determination of effect for all listed species. This documentation may be in agreement with or in addition to the sponsor’s evaluation. Official effect determinations must be documented in the permanent NEPA record. MoDOT environmental staff will also specify what actions need to occur to address any environmental issues and who needs to perform those actions (the sponsor or MoDOT). MoDOT will handle all coordination with the FWS to obtain any necessary clearances.
If the sponsor determines and MoDOT agrees that there will be No Effect on listed species or their suitable habitat, then the ESA requires no further coordination at that time. In the RER, MoDOT will document that the project is clear of any T&E species constraints. If any measures or modifications are necessary to achieve a No Effect determination, these will become commitments during the NEPA decision making process and require follow-through for compliance.
If it is determined that a federally listed T&E species, suitable habitat, critical habitat, or other federally protected resource is present or is likely to occur within the project limits and the action may affect a listed species or federally designated critical habitat, FHWA and MoDOT are required to complete ESA consultation with the FWS. The ESA describes two types of consultation, formal and informal. Formal consultation is required when there will be an Adverse Effect on a listed species or Adverse Modification of federally designated critical its habitat. It is rarely necessary, and therefore it is not covered in detail here. Should formal consultation become necessary, FHWA, MoDOT, and the sponsor would work through the process together.
188.8.131.52.2.2.1 Informal Consultation
Informal consultation is conducted when a T&E species, suitable habitat, or critical habitat is present or likely to occur in the proposed project area and MoDOT on behalf of FHWA has determined that the project “may affect, but is not likely to adversely affect” (NLAA) the species. Informal consultation can only be completed if FHWA and MoDOT can provide data to show that they have removed all potential for the project to have an adverse effect on the species or its critical habitat. As the designated non-federal representative of FHWA, MoDOT environmental staff submits project details, species assessments, and effect determinations to FWS justifying that the project is not likely to adversely affect the species and request written concurrence. The justification for this submittal is taken from the sponsor’s evaluation of the project impacts. It may be necessary for the sponsor to conduct additional surveys, commit to seasonal restrictions, or modify the design of the project to avoid or minimize impacts to listed species. Commitments made during consultation must be followed to be in compliance with federal laws. All T&E commitments must be included in the NEPA documentation and attached to the RER. Once the documentation is submitted to the FWS, they usually respond within 30 days. If they concur with the NLAA determination, and the sponsor has committed to conservation measures which will be implemented for the project, then Section 7 ESA consultation is complete and MoDOT will notify the sponsor with environmental clearance. If FWS does not concur with that determination, then either additional clarification and protection measures may be needed or formal consultation is necessary. Informal consultation with the FWS should begin three to six months prior to Plans, Specs, and Estimates (PS&E) to allow time to complete the process and avoid project delays.
184.108.40.206.2.2.2 Range-wide Programmatic Informal Consultation for Indiana Bat and Northern Long-eared Bat Only
Your project may qualify for consultation under a programmatic agreement for summer bat habitat impacts if certain conditions can be met. The FWS and FHWA entered into an agreement for streamlining consultation for projects that are NLAA Indiana and northern long-eared bats. More information about this programmatic consultation agreement is available.
Generally, if suitable summer bat habitat is present in the project limits, trees to be removed for the project are entirely within 100 ft. of the existing road, and the sponsor commits to seasonal tree clearing (i.e. clearing suitable bat habitat only between November 1 and March 31) then the project likely qualifies for programmatic consultation. The justification for this assessment is taken from the sponsor’s evaluation of the project impacts. It will be necessary for the sponsor to commit to seasonal tree clearing restrictions. MODOT environmental staff will submit documentation to FWS describing project details and verifying the project meets the programmatic consultation criteria. Once submitted to the FWS, they have 14 days to ask for additional information. If there is no comment during that time, the project has automatic concurrence for Indiana and northern long-eared bat impacts. If “No Effect” determinations are made for all other species, then Section 7 ESA consultation is complete and MoDOT will notify the sponsor with environmental clearance.
220.127.116.11.3 Migratory Birds
Sponsors could encounter the nests of bird species protected by the Migratory Bird Treaty Act of 1918 (MBTA) while conducting bridge repairs and replacements. Several bird species protected by the Act commonly construct their nests on the underside of bridge decks and on the substructure. These most often include cliff swallows, barn swallows, Eastern phoebes, and American robins. Cliff swallows build their gourd-shaped mud nests in colonies, sometimes containing hundreds of nests. Often, these nests are found on bridges over water but they can also occur on bridges over major highways and railroads, particularly if the bridge is in a floodplain or near permanent water. Barn swallows also build mud nests, but they are cup-shaped and not enclosed like cliff swallows. They will also nest in colonies, but usually these are much smaller than those of cliff swallows.
Eastern phoebe and American robin nests are frequently found on smaller bridges over small rivers. Usually they are on the top of substructure steel components and near the abutments. They are not colony nesters but sometimes 3 or 4 nests can be found on a single bridge. Other MBTA-protected species can also be found nesting on bridges, but they are not common. Several bird species that are not protected by the MBTA are often seen nesting on bridges. These include pigeons (rock doves), European starlings, and house sparrows. These species are all non-native introductions to the US and therefore, they are not protected by the MBTA.
18.104.22.168.3.1 Laws and Regulations
The Migratory Bird Treaty Act of 1918 makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase or barter any migratory bird, or the parts, nests or eggs of such a bird except under the terms of a valid permit issued pursuant to Federal regulations. The migratory bird species protected by the act are listed in 50 CFR 10.13. "Take" refers to killing adults, eggs or young of the bird species protected by the act.
All projects that involve impacts to the underside of bridge decks, the substructure, or concrete box culverts should be checked for the presence of nesting birds. For LPA projects, the project sponsor or their consultant is expected to perform the inspection and report it on the Request for Environmental Review (RER) and Fig. 136.6.18 LPA Environmental T&E Checklist.
Inspections should take place within a year of the anticipated letting date. The checklist notes additional requirements for documenting bridge inspections. If no nests are noted, the project will be cleared and nothing further is required. If nests are noted, a Job Special Provision will need to be placed in the contract that provides guidance on how to avoid violating the MBTA. Often, removal of the old, inactive nests (those without eggs or young) before the project starts, and maintenance of the bridge in a nest-free condition until construction, is necessary. Nest removal should be done in the non-breeding season. Generally speaking, the assumed active breeding season for the majority of the birds that would use bridge and culvert structures as habitat is between April 1 and July 31. However, these are just general dates and no active bird nests should be disturbed without a permit, even outside of these dates.
22.214.171.124.3.2.1 Sponsor Responsibilities
The Sponsor is responsible for reporting any nests known to be present on the structure when submitting the RER and on the LPA Environmental T&E Checklist (see excerpt below). If nests are present, a JSP for avoidance will be used and must be followed.
|Excerpt from Fig. 136.6.18 LPA Environmental T&E Checklist|
|For supplemental instructions, see MoDOT T&E Program Guidance videos.|
126.96.36.199.3.2.2 Environmental Section Responsibilities
During RER reviews, the MoDOT Environmental Specialist will review the project description, plans, photos, and written assessments and determine if the project has the potential to harm protected species. MoDOT will confirm with the sponsor the JSP will be used prior to clearing the Migratory Bird review on the RER. If a project is already under construction, and nests are noted on the bridge, MoDOT will assist in determining if the nests are active, if they belong to an MBTA-protected species, and to provide the sponsor with options to avoid violations of the MBTA.
188.8.131.52 Base Floodplain and Regulatory Floodway
Floodplains provide a number of important functions in the natural environment—creating wildlife habitat, providing temporary storage of floodwater, preventing heavy erosion caused by fast-moving water, recharging and protecting groundwater, providing a vegetative buffer to filter contaminants, and accommodating the natural movement of streams. Executive Order 11988—Floodplain Management, Federal Highway Administration (FHWA) policy and procedures in 23 CFR 650, and other federal floodplain management guidelines direct agencies to evaluate floodplain impacts for proposed actions.
Floodplains can be described by the frequency of flooding that occurs. With Executive Order 11988, the base, or one percent annual chance, flood was formally adopted as a standard for use by all federal agencies. The base flood is the flood that has a one percent chance of being equaled or exceeded each year. Thus, the base flood can occur more than once in a relatively short period of time. The base flood is commonly labeled the “one percent flood” and often inappropriately referred to as the “100-year” flood. Larger floods may, and often have, occurred but the one percent flood is the generally accepted regulatory standard.
The National Flood Insurance Program (NFIP) uses the base flood as the standard for floodplain management and to determine the need for flood insurance. When available, NFIP flood hazard boundary maps and flood insurance studies for the project area are used to determine the limits of the base (1%) floodplain and the extent of encroachment (an action within the limits of the base floodplain). The base floodplain is the area of one percent flood hazard within a county or community—that is, the area in which the flood has a one percent chance of being equaled or exceeded in any given year.
The regulatory floodway is the area of a stream or river channel plus any adjacent floodplain areas that must be kept open to convey floodwaters from the base flood without increasing the height of the flood more than a certain amount. Federal Emergency Management Agency (FEMA) restrictions do not allow projects to cause any rise in the regulatory floodway and no more than a one-foot cumulative rise may result from all projects in the base (1%) floodplain. Fig. 136.6.10 illustrates the various elements of a typical floodplain.
The LPA provides information on the LPA Request for Environmental Review (RER) form regarding community participation in the NFIP and whether the project is located in a Special Flood Hazard Area (SFHA). The SFHA is the land area covered by the floodwaters of the base flood on NFIP maps and where the NFIP's floodplain management regulations must be enforced. A current list of communities for which FEMA Flood Insurance Studies have been performed is available in the National Flood Insurance Program Community Status Book. Missouri-only data is also available. If the project is located in a community or county that has not been mapped, the LPA notes this. If the community has been mapped, the LPA identifies whether the project is located in the 100-year floodplain and/or regulatory floodway.
The MoDOT district contact will inform the LPA of the need to obtain a floodplain development permit (Fig. 136.6.11 LPA Floodplain Development Permit Application) from the local floodplain administrator or whether, for projects proposed within regulatory floodways, the LPA must obtain a “no-rise” certificate before a Floodplain Development Permit is issued. To find contact information for your local floodplain administrator, use the menu or map feature under Local Floodplain Administrator on the State Emergency Management Agency website. Fig. 136.6.12 contains the Engineering "No-Rise" Certification form and Fig. 136.6.13 describes Procedures for “No-Rise” Certification for Proposed Development in the Regulatory Floodway.
LPAs that participate in the NFIP must ensure that floodplain developments meet the NFIP regulations identified in Title 44, Code of Federal Regulations, Parts 59 through 78. (Parts 59 and 60 contain the most applicable information for a typical project.) The LPA, with assistance from the local floodplain administrator, is responsible for ensuring that FEMA NFIP requirements are met. The LPA is also responsible for obtaining all required certifications before construction begins. The LPA should note that if a project requires a Clean Water Act Section 404 permit, the floodplain development permit cannot be issued until the 404 permit is issued by the US Army Corps of Engineers (44CFR60.3a). Issuance of the 404 permit is also dependent on other applicable clearances such as Section 106 of the National Historic Preservation Act and Section 7 of the Endangered Species Act. Additionally, because the NFIP requirements may control the hydraulic design of the project, the LPA is advised to investigate this in the early stages of the project.
For the convenience of LPAs and engineers, FEMA Flood Insurance Studies and flood maps pertaining to a project site can be viewed by selecting “Flood Insurance, Flood Maps, and/or All Flood Information.” Hardcopies of the FEMA Flood Insurance Studies and Flood Maps can also be ordered through the same site.
184.108.40.206 State Emergency Management Agency (SEMA)/Federal Emergency Management Agency (FEMA) Buyout Lands
The Flood Disaster Protection Act of 1988 (The Stafford Act), under Section 404, identified the use of disaster relief funds for the Hazard Mitigation Grant Program (HMGP), including the acquisition and relocation of flood-damaged property. The Volkmer Bill further expanded the use of HMGP funds under Section 404 to “buy out” flood-damaged property that had been affected by the Great Flood of 1993.
These FEMA buyout properties have numerous restrictions. No structures or improvements may be erected on these properties unless the improvements are open on all sides. The site can be used only for open space purposes and must remain in public ownership. These conditions and restrictions (among others), along with the right to enforce same, are deemed to be covenants running with the land in perpetuity and are binding on subsequent successors, grantees, or assigns. Any project decision involving a FEMA buyout property should consider that it may take two to three years to obtain an exemption from FEMA to use this parcel, and if allowed, the exemption would likely be a permanent easement rather than a transfer of property.
220.127.116.11 Stormwater and Erosion Control
Provisions of the federal Clean Water Act (CWA) and related state rules and regulations require stormwater permits for construction activities that disturb areas of one acre or more. Prior to initiation of any federal-aid project, the LPA needs to determine the acreage that will be disturbed. If less than one acre is disturbed, the LPA is exempt from the requirements of the CWA National Pollutant Discharge Elimination System (NPDES) program permits and DNR permit applications. However, there may be other state or local ordinances that must be addressed and the LPA should inquire whether there are local rules and regulations that govern clean water guidelines. Even if a NPDES permit is not required and there are no local clean water guidelines, the LPA must still develop and adhere to a site specific erosion control plan for ANY ground disturbance. If more than one acre is planned to be disturbed, documentation shall be provided in the NEPA document for the project and a commitment to obtain and comply with pertinent NPDES permits shall be listed in the NEPA commitments.
Permit for Land Disturbance
Missouri Department of Natural Resources (DNR) is Missouri’s regulating agency for environmental compliance. DNR issues land disturbance permits for projects one acre and greater to ensure compliance with the CWA and Missouri’s Clean Water Law. LPA’s will be required to obtain a land disturbance permit from DNR for any applicable project, unless a general operating permit exists for the entity. A few cities (Kansas City, Columbia, and others) and counties have obtained their own land disturbance permits from DNR for generic land disturbance purposes. In these areas, the LPA (city or county government) has its own restrictions and erosion control guidelines to meet the intent of its program. If one acre or more will be disturbed, the LPA should determine whether its city or county is operating under a DNR-approved program. If so, the local government jurisdiction will impose appropriate erosion controls.
When a project will disturb one acre or more and the city or county does not have a DNR-approved stormwater program, the LPA must obtain a permit from DNR and provide documentation that this commitment was completed. The LPA must develop a Stormwater Pollution Prevention Plan (SWPPP) for the project and a site-specific erosion control plan. Some example SWPPPs are available. The LPA will need to contact the DNR NPDES Water Pollution Control Program office (573-751-1300 or 800-361-4827) for further directions. The LPA is responsible for providing a temporary erosion control plan to be included with the final plan submittal if any amount of acreage is to be disturbed. The plans will detail the types of temporary erosion and sediment control best management practices (BMPs) to be used and where the items will be installed. Further information on design criteria can be found in EPG 806 Pollution, Erosion and Sediment Control.
For information on temporary stream crossing pipes and construction, see EPG 806.8 Storm Water Pollution Prevention Plan (SWPPP).
Individual State Operating Permit for TS4
MoDOT has an individual permit (from MDNR) that applies to stormwater (TS4 Permit MO-0137910). If you are inside the limits of a regulated MS4 area, you must adhere to the MS4 requirements as defined in the respective MS4 permit specific to that municipality. Additionally, if you are discharging to a watershed subject to an approved and effective Total Maximum Daily Load (TMDL) that MoDOT is assigned a Waste Load Allocation (WLA) or discharging to an Outstanding National or State Resource Water, directly or through MoDOT’s drainage system (e.g., ditches and stormwater conveyance systems), runoff must be treated for water quality and/or quantity before entering MoDOT’s drainage system. If the project’s land disturbance is 1 acre or more and entirely on MoDOT right of way, you must comply with MoDOT’s TS4 permit.
18.104.22.168 Borrow Sites and Other Land Disturbance Activities Outside Right of Way
Borrow/spoil sites, staging areas, haul roads, and/or burn pits may be located outside the project footprint and therefore were not previously addressed by the NEPA document and other environmental approvals for the project. The LPA is responsible for ensuring that the contractor obtains all necessary environmental clearances for borrow sites and other land disturbance areas—including off-site locations used to deposit excess material or for haul roads. To eliminate possible delays, the LPA should specify in the engineering services contract that a proposed borrow site be investigated. The LPA will provide clearance documentation to the MoDOT district contact. Procedures for environmental clearance of borrow sites and other land disturbance activities outside right of way is available at EPG 127.27 Guidelines for Obtaining Environmental Clearance for Project Specific Locations.” This information is also available through the MoDOT district contact.
The requirements of Section 106 of the National Historic Preservation Act apply to all areas of land disturbance. The LPA must complete the State Historic Preservation Office's Section 106 Project Information Form and submit it to DNR. The LPA will provide written certification to the MoDOT district contact that the proposed site of land disturbance has been cleared of environmental concerns under all applicable federal and state laws and regulations. These include but are not limited to the Clean Water Act; Section 4(f) of the Department of Transportation Act; the Endangered Species Act; the National Historic Preservation Act; the Farmland Protection Act; Resource Conservation and Recovery Act; Comprehensive Environmental Response, Compensation, and Liability Act; and RSMo Chapter 194, Section 194.400, Unmarked Human Burial Sites. Certification must include all clearance letters and other evidence of coordination with the appropriate regulatory agencies.
22.214.171.124 Hazardous Waste
A number of laws and regulations deal with hazardous waste and both underground and aboveground storage tanks. Properties containing hazardous and non-hazardous solid wastes are frequently encountered in new right-of-way acquisitions. Some properties with extensive contamination and legal liabilities may warrant avoidance. For most sites, however, early identification and planning will allow selection of feasible alternatives with incidental costs. In addressing hazardous and solid wastes, the goals are to avoid unacceptable cleanup cost and legal liability and comply with federal and state laws and regulations regarding cleanup. The most common type of hazardous waste site encountered is a petroleum underground storage tank (UST) site. LPAs shall evaluate proposed corridors for hazardous and solid waste sites by conducting a thorough database search and a field check (if necessary). Possible sources include:
- DNR Missouri Hazardous Waste Treatment, Storage, and Disposal Facilities List, select Missouri Commercial Hazardous Waste Facilities, List--PUB968
- Petroleum Storage Tank Insurance Fund, select Tank Sites tab
- National Response Center Hotline, select Services, then query/download and select Standard Reports to run query
- EPA Envirofacts, under Other Sites of Interest select Enviromapper
- Other lists as appropriate.
Coordination with the Environmental Protection Agency (EPA) and DNR will help to determine liability, regulatory requirements, and potential cleanup costs. The potential to encounter unknown wastes from sites not identified through database and/or site reviews by the LPA should always be a consideration. Any unknown sites that are found during project construction shall be handled in accordance with federal and state laws and regulations. Any agency coordination, known hazardous waste site boundaries, and any measures taken to avoid, minimize or mitigate impacts to those areas must be included in the NEPA document. Any work not completed during the NEPA stage must be carried forward as a commitment for construction as appropriate.
126.96.36.199.1 Renovation and Demolition of Structures
All structures, including bridges, that will be renovated or demolished must be inspected for asbestos. The reports from these hazardous waste inspections MUST be included in the bid proposal. Demolition or renovation is a three-step process under the asbestos regulations. All structures that meet the criteria as described above must be inspected by an Asbestos Building Inspector. Following the inspection, regardless of whether asbestos is present or not, an Asbestos Demolition Notification shall be made to DNR no fewer than 10 working days prior to beginning the project. If regulated amounts of asbestos are present, an Asbestos Project Notification must also be submitted and an Asbestos Post-Notification must be filed after the work is completed. If abatement is necessary, a certified Contractor Supervisor must be present and a licensed asbestos abatement contractor must do the abatement. Useful links for information on asbestos regulations include:
- The main Asbestos Information page
- Asbestos Requirements for Demolition and Renovation Projects tech bulletin
- Asbestos Project Notification
- Asbestos Demolition Notification
- Asbestos Post-Notification
- MO DNR contact: Senora Cressman, Environmental Specialist, office (573) 522-9936, cell (636) 432-8083, fax (573) 751-2706.
188.8.131.52.2 Painting Bridges and Demolition of Painted Structures
Painted surfaces of bridges and structures often contain heavy metals such as lead, chromium or barium that are regulated as hazardous waste under federal and state law. MoDOT has entered into a Memorandum of Understanding (MOU) with the Department of Health and Senior Services (DHSS) that stipulates certain requirements for lead abatement contractors. The contractor requirements involve any testing or identifying of lead-based paint on the surface of structures, determining whether a painted structure is a lead-hazard because of deteriorated paint, and performance of lead abatement activities. Specific requirements for LPA projects include:
- 1) All contractors and subcontractors performing lead abatement activities must be licensed as Missouri lead abatement contractors. Additionally, employees of the contractors performing lead abatement activities are required to be licensed as Missouri lead abatement supervisor(s) and/or workers,
- 2) the project sponsor shall provide notification to DHSS through the submittal of a lead abatement project funding agency notification form that is required to be submitted 10 days prior to the onset of lead abatement projects, and
- 3) the contractor shall also provide notification to DHSS through the submittal of a lead abatement project notification form that is required to be submitted 10 days prior to the onset of lead abatement projects.
Both the MOU and contractor information for lead work activities are available. Application forms, licensing information and training schedules are also available.
Painted structures shall be tested prior to painting and demolition to determine proper disposal for the waste generated during the project. The inspection reports MUST be included in the bid proposal. The test results for heavy metal analysis shall be included in the NEPA document, along with the identification of the need to handle and dispose of the material as a hazardous waste. Any work not completed during the NEPA stage must be carried forward as a commitment for construction as appropriate. Note that the information provided herein is not inclusive and LPAs must follow all applicable federal and state laws for these activities.
Wash water and wipes used to clean bridge surfaces prior to painting must be collected and tested to determine whether they are regulated as hazardous waste. If it fails, it must be handled in accordance with federal and state law. Wash water that is not hazardous waste must still be collected and disposed at a Publicly Owned Treatment Works or a National Pollutant Discharge Elimination System (NPDES) permit must be obtained for discharge.
Blast residue must be collected and tested to determine whether it is regulated as a hazardous waste. Bridges with lead-, chromium-, or barium-based paint (or other regulated metals), must be handled as a hazardous waste and transported by a licensed hazardous waste transporter to a permitted Treatment Storage and Disposal (TSD) facility. Hazardous Waste Summary reports must be submitted to the Department of Natural Resources (DNR) for assessment of fees and taxes.
Painted Block and Brick in Structures to be Demolished
When a building or structure (including bridges) that is to be demolished contains block and brick that is painted, the painted surfaces should be tested for regulated heavy-metal-based paint to determine whether the material can be used for clean fill. As previously described above in the first paragraph of EPG 184.108.40.206.2, for any lead testing activity the contractor must be licensed as a lead abatement contractor and the contractor must provide the proper notification(s) to DHSS. All other demolition debris must be disposed in a demolition landfill. If a demolition landfill is not available, a permitted solid waste landfill can accept it. The levels of certain metals that are acceptable for use as clean fill are listed in the DNR Tech Bulletin on Painted Block and Brick.
220.127.116.11 Farmland Protection Policy Act
The Farmland Protection Policy Act (FPPA) mandates that agencies identify and take into account the adverse effects of federal projects on farmland. The act requires all federally funded projects to be assessed for the potential conversion of farmland to non-farming purposes. LPAs shall assess the impact of their projects in cooperation with the local Natural Resources Conservation Service (NRCS) office.
If the project requires no additional right of way, farmland assessment is not necessary. When additional right of way is needed, if it is located within city limits and the affected land is entirely developed for uses other than agriculture (e.g., within city limits), the LPA may document this in their files and no further action is required. If it is outside of established city limits, the LPA must complete a Form AD-1006 Farmland Conversion Impact Rating (or for corridor type projects Form SCS-CPA-106 and forward it along with the preliminary layouts to the NRCS for agency review.
Forms can also be obtained from the NRCS and may be reproduced. The LPA completes Parts I and III, showing the acreage of new right-of-way and borrow areas, and submits three copies to NRCS. The submittal should request NRCS to fill out Parts II, IV, and V. NRCS assistance in filling out Part VI can also be requested, if desired. The LPA shall also ask NRCS to advise whether any land considered to be farmland is subject to any state or local government policy or programs to protect farmland.
The LPA must complete the form after NCRS returns it. If the total rating exceeds 160 points, the FPPA mandates further consideration of protection. Using the bottom portion of Form AD-1006 labeled “Reason for Selection,” the LPA will document why this site was selected over the other alternative sites and submit one copy of the form along with the preliminary layout. This completes the processing. Under present directives, the LPA will have satisfied the requirements by considering the impact of converting any farmland to non-agricultural use and submitting the completed form. If the project is classified as other than a categorical exclusion, the completed form must be included in the EIS or EA.
18.104.22.168 Community Impact Assessment (Social/Economic/Environmental Justice)
Title VI of the Civil Rights Act of 1964 and Executive Order (EO) 12898 on Environmental Justice apply to all programs and activities of federal-aid recipients, subrecipients, and contractors whether the programs and activities are federally funded or not. Environmental justice should be considered in all project development decisions regardless of the NEPA classification.
Compliance with Title VI and EO 12898 during the NEPA process includes fully identifying social, economic and environmental effects; considering alternatives; coordinating with agencies; involving the public; and utilizing a systematic interdisciplinary approach. Potential impacts to the human environment should drive the transportation decision-making process as much as potential impacts to the natural environment and comparable consideration is to be given to both impacts to the natural and human environment. The final decisions on any proposed project on any federal-aid system are to be made in the best overall public interest, taking into consideration the need for fast, safe and efficient transportation, public services, and the costs of eliminating or minimizing possible adverse economic, social, and environmental effects. Compliance with EO 13166 on Limited English Proficiency should also be considered.
Community impact assessment is key to avoiding the potential for discrimination or disproportionately high and adverse impacts. The LPA will provide a brief description of impacts, if any, to minorities, low-income populations, and the community in general. Most projects will be small and will have minimal to no impacts. If there are any commercial or residential displacements, the following text must be included in the NEPA documentation:
- The acquisition and relocation of affected residential and commercial properties will be conducted in accordance with the relocation procedures established in the Uniform Relocation Assistance and Real Property Acquisition Policies Act (referred to as the Uniform Act) of 1970, as amended. The Uniform Act and Missouri state laws require that just compensation be paid to the owner(s) of private property taken for public use. The Uniform Act is carried out without discrimination and in compliance with Title VI (the Civil Rights Act of 1964), the President’s Executive Order on Environmental Justice, and the Americans with Disabilities Act.
The LPA must provide relocation services to all impacted households without discrimination under guidance of the Uniform Act. Additional information concerning environmental justice and community impact assessment is available.
Guidelines regarding public involvement can be found in EPG 129 Public Involvement. These guidelines are not to be viewed as all-inclusive. Instead, they outline the minimum level of expectations for public involvement, with each individual effort matching the specific needs of the project and the community involved. Public involvement efforts based on environmental document type can be found in EPG 129.4 Public Involvement Based on Environmental Document Type. Documentation is key and any outreach must be documented in the project files and the Request for Environmental Review (RER).
22.214.171.124 Noise Standards and Noise Abatement
Federal legislation in 1970 authorized the use of federal-aid highway funds for measures to abate and control highway traffic noise. MoDOT has a federally approved traffic noise policy to define and conform to the requirements of Article 772, Code of Federal Regulations (23 CFR 772) and the noise-related requirements of NEPA. The guidelines in the MoDOT Noise Policy are used to determine the need, feasibility, and reasonableness of noise abatement measures and provide the basis for statewide uniformity in traffic noise analysis. The LPA must use MoDOT’s FHWA-approved noise policy. Refer to EPG 127.13 Noise.
126.96.36.199 Air Quality Requirements
The Clean Air Act defines requirements for transportation project air quality analysis. In Missouri, requirements are met through conformity demonstrations with established emission budgets contained in the State Implementation Plan (SIP). This process involves projects meeting the definition of "regionally significant" as described in 23 CFR 450.104. At a minimum, this includes all principal arterial highways and all fixed guideway transit facilities that offer a significant alternative to regional highway travel and would normally be included in the modeling of a metropolitan area’s transportation network. Generally, LPA projects will not meet the definition of "regionally significant" and the appropriate response for TIP Number on the Request for Environmental Review (RER) form is “N.A.” In the event a local project is determined to be regionally significant, conformity will be demonstrated through an established process for inclusion in a metropolitan Transportation Improvement Program (TIP).
136.6.5 Environmental Assessment (EA)
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. To avoid delays in project development, the LPA, or its consultant, should initiate preparation of the EA sufficiently early to ensure that NEPA compliance can be achieved before 35% design completion. 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 where there is potential for a significant impact. The EA should be concise and should not contain long descriptions or include detailed information that may have been gathered or analyses that may have been conducted for the proposed action. FHWA Technical Advisory T6640.8A “Guidance for Preparing and Processing Environmental and Section 4(f) Documents” provides additional direction on the information contained in an EA and the format. The LPA must contact the MoDOT district contact if a significant impact is identified at any time during the preparation of an EA. FHWA will determine whether an EIS needs to be prepared.
The LPA should begin consultation (through either early coordination or a 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 with potential for social, economic, or environmental impact and will identify other environmental review and consultation requirements that are performed concurrently with the EA. Agencies with jurisdiction by law, such as the COE or the FWS, must be invited to become cooperating agencies. The LPA will provide the MoDOT district contact with draft letters requesting the COE and other agencies to be cooperating agencies and FHWA will send the letters. The LPA will also work with the FHWA to initiate consultation with federally recognized American Indian tribes determined to have an interest in the project area. Such consultation is conducted by FHWA on a government-to-government basis (FHWA determines which tribes and sends the letters); 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. The LPA or its consultant will prepare a draft letter for FHWA’s use but will not contact the tribes. The EA must summarize the results of both agency consultation and public involvement. The LPA, or its consultant, will prepare a preliminary EA (pEA) that encompasses the following:
- Finalize the location study with all alternates considered, including those discarded, 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 preferred alternate is not selected.
- Identify all previously reported archaeological and historic sites located within the study corridor and all alternates being considered. FHWA 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 and the district determine 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 pEA 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 and/or habitats within the project limits.
- 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. If the LPA does not have a noise policy, it is suggested that they use MoDOT’s FHWA-approved noise policy. 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.
- 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 pEA is provided to MoDOT for distribution to FHWA and any formal cooperating agencies (identified as such on the pEA cover sheet) for their review and comment. The document is not to be distributed to anyone outside of these entities. When the LPA or its consultant has addressed the review comments on the pEA, the EA is ready for FHWA’s final review and approval, after which it is made available to the public as an FHWA document.
The EA must be made available for public inspection at the LPA’s office and at the appropriate FHWA field offices as described in the next two paragraphs of this section. Although it is not a federal requirement that the document be circulated for comment, the LPA is encouraged to provide the EA to those federal, state, and local agencies likely to be affected by the action (those with regulatory or other responsibilities relating to the action). As a minimum, the LPA must send notice of availability of the EA, briefly describing the project and its impacts, to the affected units of federal, state, and local government and to Missouri Federal Assistance Clearinghouse, the state intergovernmental review contact established under Executive Order 12372.
MoDOT’s normal practice is to hold a location public hearing for all EAs. Although FHWA regulations do not require public hearings for EAs, the FHWA encourages them on most EAs. For specific EAs depending on the situation, the FHWA division office may require a public hearing after signing the EA and before signing the FONSI. Detailed information on public hearings is located in EPG 136.7.6 Public Hearings. When a public hearing is held as a part of the application for federal funds, the EA must be available at the public hearing and at the LPA’s office and at the appropriate FHWA field offices for a minimum of 15 days in advance of the public hearing. The notice of the public hearing in local newspapers must announce the availability of the EA and where it may be obtained to review. The notice will include a statement advising that comments should be submitted in writing to the LPA within 30 days of the availability of the EA unless FHWA determines that a different period is warranted.
When a public hearing is not held, the LPA must place a notice similar to a public hearing notice and at a similar stage of project development in the local newspapers, advising the public of the EA’s availability at the LPA’s office and at the appropriate FHWA field offices and where to obtain information concerning the project. The notice must invite comments from all interested parties. It will include a statement advising that comments should be submitted in writing to the LPA within 30 days of the publication of the notice unless FHWA determines that a different period is warranted.
188.8.131.52 Findings of No Significant Impact (FONSI)
Once the 30-day public comment period has ended and all comments from the public and other agencies have been collected, the LPA or its consultant prepares a Finding of No Significant Impact (FONSI). The FONSI should summarize any public and/or agency coordination that occurred after the EA was signed. The FONSI must satisfactorily address all substantive comments on the EA provided during the 30-day comment period, including those from other agencies, the general public, and as a result of the public hearing. To ensure this, the LPA will provide the MoDOT district contact with a copy of the public hearing transcript and/or any other comments received for transmission to the FHWA along with the FONSI. The FONSI must describe any changes to the EA-designated preferred alternate 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, either an MOA or a PA executed by the DNR-SHPO, FHWA, Advisory Council on Historic Preservation (ACHP), and the LPA 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 or PA will also be provided to appropriate American Indian tribes with cultural interest in the region for review, comment, and signature if they desire. 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.
When the FONSI is completed and the listed items are included, the documentation (with a signature page) is provided to MoDOT for distribution 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 also be made available for public review, including affected units of government, for a minimum of 30 days before FHWA issues a FONSI for the project. A notice similar to that for a public hearing must announce the availability of the documentation. If at any point in the EA process, FHWA determines that the action is likely to have a significant impact, the LPA will be required to prepare an EIS.
FHWA will review the FONSI, 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 a copy of the signed FONSI will be returned to the LPA.
After FHWA issues a FONSI, the LPA is encouraged to provide the FONSI to those federal, state, and local agencies likely to be affected by the action (those with regulatory or other responsibilities relating to the action). As a minimum, the LPA must send a notice of availability of the FONSI to the affected units of federal, state, and local government and the FONSI shall be available from the LPA and FHWA upon request by the public. Notice of availability is also sent to Missouri Federal Assistance Clearinghouse, the state intergovernmental review contact established under Executive Order 12372.
The project schedule should allow about two years for obtaining a FONSI.
136.6.6 Environmental Impact Statement (EIS)
184.108.40.206 Draft Environmental Impact Statement
An EIS is prepared for projects that have clearly identified and significant social, economic, or environmental impacts. FHWA indicates that an EIS is required for four-lane relocations as well as for major bridges or projects that are controversial. To avoid delays in project development, the LPA, or its consultant, should initiate preparation of the EIS sufficiently early to ensure that NEPA compliance can be achieved before 35% design completion.
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 and all other environmental commitments. FHWA Technical Advisory T6640.8A “Guidance for Preparing and Processing Environmental and Section 4(f) Documents” provides additional direction on the information contained in an EIS and the format.
When FHWA determines that an EIS is required, the LPA will prepare and FHWA will issue a Notice of Intent for publication in the Federal Register. LPAs are encouraged to announce the intent to prepare an EIS by appropriate means at the local level.
After publication of the Notice of Intent, the LPA will begin a scoping process to aid in identifying the range of alternatives and impacts and the significant issues to be addressed in the EIS. Scoping is normally achieved through public and agency involvement procedures. If a scoping meeting is to be held, it will be announced in the FHWA’s Notice of Intent and by appropriate means at the local level. Agencies with jurisdiction by law must be requested to become cooperating agencies. 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. The LPA will provide the MoDOT district contact with draft letters requesting the COE and other agencies to be cooperating and/or participating agencies as appropriate and FHWA will send the letters.
The LPA will also work with the FHWA to initiate consultation with federally recognized American Indian tribes determined to have an interest in the project area. Such consultation is conducted by FHWA on a government-to-government basis (FHWA determines which tribes and sends the letters); 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. The LPA or its consultant will prepare a draft letter for FHWA’s use but will not contact the tribes.
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. Section 6002 also mandates establishing a coordination plan for agency and public participation and comment. Further information on the SAFETEA-LU environmental review process can be found in FHWA’s SAFETEA-LU ENVIRONMENTAL REVIEW PROCESS FINAL GUIDANCE, Publication L 109-59, November 15, 2006.
The LPA or its consultant will prepare a preliminary Draft EIS (pDEIS) that evaluates all reasonable alternatives to the action and discusses the reasons why other alternatives that may have been considered were eliminated from detailed study. The pDEIS also summarizes the studies, reviews, consultation, and coordination required by environmental laws or Executive Orders to the extent appropriate at this stage in the environmental process. A pDEIS requires completing the following work:
- Finalize the location study; all alternates considered, including those discarded, must be depicted graphically in the document.
- 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 preferred alternate is not selected. (Provisions of SAFETEA-LU allow FHWA to decide whether the preferred alternative may be developed to a higher level of design detail to facilitate either the development of mitigation measures or compliance with other environmental laws. See FHWA’s 2006 SAFETEA-LU FINAL GUIDANCE, as cited previously, for details.)
- Identify all previously reported archaeological and historic sites located within the study corridor and all alternates being considered. FHWA 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 (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.
- Note the presence of any potential Section 6(f) resources. If Section 6(f)(3) Conversion Documentation is required, it cannot be completed until the NEPA process is concluded because the Section 6(f) document must include copies of the approved ROD 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 and possible impacts to them.
- Determine the presence or absence of threatened or endangered plant and/or animal species and/or habitats 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. If the LPA does not have a noise policy, it is suggested that they use MoDOT’s FHWA-approved noise policy.
- 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 provided to MoDOT for distribution to FHWA and formal cooperating agencies (identified as such on the pDEIS cover sheet) and may be offered to participating agencies for their review and comment. The document is not to be distributed to anyone outside of these entities. When the LPA or its consultant has addressed the review comments on the pDEIS, the DEIS is ready for FHWA’s final review. The FHWA, when satisfied that the DEIS complies with NEPA requirements, will approve the DEIS for circulation by signing and dating the cover sheet.
The LPA is responsible for printing the DEIS in sufficient quantity to accommodate circulation to those entities listed in the document as well as requests for copies that can reasonably be expected from agencies, organizations, and individuals. Normally, copies will be furnished free of charge. However, with FHWA concurrence, the party requesting the DEIS may be charged a fee that is not more than the actual cost of reproducing the copy or may be directed to the nearest location where the statement may be reviewed.
Once FHWA signs the DEIS, public and agency comments must be requested. The LPA, on behalf of FHWA, circulates the approved DEIS to federal and state agencies, local entities, elected officials, and others as appropriate for their review and comment. Upon circulation of the approved DEIS to the Environmental Protection Agency (EPA), the EPA publishes a Notice of Availability (NOA) in the Federal Register. Copies of the approved DEIS are also provided for public viewing and copying in the LPA’s office and other public repositories such as libraries and city or county offices. The DEIS must be made available to the public and transmitted to agencies for comment no later than the time the document is filed with the Environmental Protection Agency. The DEIS shall be transmitted to:
- 1. Public officials, interest groups and members of the public known to have an interest in the proposed action or the DEIS;
- 2. Federal, state and local government agencies expected to have jurisdiction or responsibility over, or interest or expertise in, the action. Copies are provided directly to appropriate state and local agencies and to Missouri Federal Assistance Clearinghouse, the state intergovernmental review contact established under Executive Order 12372; and
- 3. States and federal land management entities that may be significantly affected by the proposed action or any of the alternatives. These copies shall be accompanied by a request that such state or entity advise the FHWA in writing of any disagreement with the evaluation of impacts in the statement. FHWA will furnish the comments received to the LPA along with a written assessment of any disagreements for incorporation into the final EIS.
The Federal Register NOA initiates a period of no less than 45 days for the return of comments on the DEIS. The notice and the DEIS transmittal letter must identify to whom comments may be sent.
A location public hearing is generally held for all projects requiring an EIS. Detailed information on public hearings is located in EPG 136.7.6 Public Hearings. The DEIS shall be available at the public hearing and for a minimum of 15 days in advance of the hearing. The availability of the DEIS shall be mentioned and public comments requested in any public hearing notice and at any public hearing presentation. If a public hearing on an action proposed for FHWA funding is not held, a notice shall be placed in newspaper similar to a public hearing notice advising where the DEIS is available for review, how copies may be obtained, and where the comments will be sent.
220.127.116.11 Final Environmental Impact Statement
After circulation of a DEIS, when 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 FEIS identifies the preferred alternative and evaluates all reasonable alternatives considered. It should also discuss substantive comments received on the DEIS and responses thereto, summarize public involvement, and describe the mitigation measures that are to be incorporated into the proposed action. Mitigation measures presented as commitments in the FEIS must be implemented with the project. The following items of work are 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 public hearing, must be satisfactorily addressed. To ensure this, the LPA will provide the MoDOT district contact with a copy of the public hearing transcript and/or any other comments received for transmission to the FHWA along with the pFEIS.
- A preferred alternate must be declared.
- A Phase I archaeological survey must be completed for the preferred 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 (DNR) 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 DNR’s State Historic Preservation Office (DNR-SHPO), including those less than 50 years of age, must be submitted to DNR 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 DNR-SHPO, FHWA, the LPA, and the Advisory Council on Historic Preservation (ACHP) (all PAs; MOAs if it chooses to participate). 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, comment, and signature if they desire.
- 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.
- Identify any Section 6(f) resources the project will affect. Elements of the Section 6(f)(3) Conversion Documentation may be assembled during preparation of the NEPA document, even though the Section 6(f) document cannot be completed until the NEPA decision document has been issued.
- A preliminary jurisdictional wetland and stream delineation is conducted in the project area for the preferred alternative and expected impacts are documented.
- Identify whether any consultation with the U.S. Fish and Wildlife Service is required to address threatened or endangered plant and/or animal species within the project limits and any conservation measures resulting from the consultation.
- The location of any necessary noise walls is proposed (this may change subject to subsequent detailed design and public involvement with the affected residents).
The FEIS will also document compliance, to the extent possible, with all applicable environmental laws and Executive Orders or provide reasonable assurance that their requirements can be met. Every reasonable effort shall be made to resolve interagency disagreements on actions before processing the FEIS. If significant issues remain unresolved, the FEIS must identify those issues and the consultations and other efforts made to resolve them. When the listed items are completed and included in a preliminary FEIS, the pFEIS is provided to MoDOT for distribution to FHWA and formal cooperating agencies (identified as such on the pFEIS cover sheet) and may be offered to participating agencies for their review and comment. The document is not to be distributed to anyone outside of these entities. When the LPA or its consultant has addressed the review comments on the pFEIS, the FEIS is ready for FHWA’s final review and approval. The FEIS will be reviewed for legal sufficiency prior to FHWA approval.
FHWA will indicate approval of the FEIS for an action by signing and dating the cover page. Approval of the FEIS does not commit the FHWA to approve any future request to fund the preferred alternative.
The LPA should print a sufficient quantity of the FEIS to accommodate circulation to the appropriate entities as well as requests for copies that can reasonably be expected from agencies, organizations, and individuals. Normally, copies will be furnished free of charge. However, with FHWA concurrence, the party requesting the FEIS may be charged a fee that is not more than the actual cost of reproducing the copy or may be directed to the nearest location where the statement may be reviewed.
When sufficient copies of the approved FEIS are transmitted to FHWA, FHWA circulates the document to the EPA along with an NOA to be published in the Federal Register. Publication of the NOA initiates a 30-day comment period on the FEIS. The LPA circulates the approved FEIS for review and comment to any persons, organizations, or agencies that made substantive comments on the DEIS or requested a copy, no later than the time the document is filed with EPA. In the case of lengthy documents, the agency may provide alternative circulation processes. The LPA shall also publish a notice of availability in local newspapers and make the FEIS available through the mechanism established pursuant to DOT Order 4600.13 which implements Executive Order 12372. When the FEIS is filed with EPA, it must be available for public review at the LPA’s offices and at appropriate FHWA offices. A copy will also be made available for public review at institutions such as local government offices, libraries, and schools, as appropriate.
136.6.7 Record of Decision (ROD)
Substantive comments received on the FEIS are addressed in a Record of Decision (ROD) prepared by the LPA. 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. After comments are satisfactorily addressed, the ROD is presented to FHWA for approval. Once the ROD is signed by FHWA, the LPA can approve the location of the project and begin detailed design.
The timeframe for completing the EIS process varies. The timeline for completing consultant-prepared EISs is a negotiated item within the scope of work. A good rule of thumb is to allow at least 3 years to get to an approved ROD.
136.6.8 Supplemental Environmental Impact Statements
A DEIS, FEIS or supplemental EIS may be supplemented at any time. An EIS shall be supplemented whenever FHWA determines that:
- 1. Changes to the proposed action would result in significant environmental impacts that were not evaluated in the EIS; or
- 2. New information or circumstances relevant to environmental concerns and bearing on the proposed action or its impacts would result in significant environmental impacts not evaluated in the EIS.
Where FHWA is uncertain of the significance of the new impacts, the LPA will develop appropriate environmental studies or, if FHWA deems appropriate, an EA to assess the impacts of the changes, new information, or new circumstances. If based upon the studies, FHWA determines that a supplemental EIS is not necessary, FHWA shall so indicate in the project file.
A supplement is to be developed using the same process and format (i.e., draft EIS and final EIS as an original EIS except that scoping is not required.
In some cases a supplemental EIS may be required to address issues of limited scope, such as the extent of proposed mitigation or the evaluation of location of design variations for a limited portion of the overall project. Where this is the case, the preparation of a supplemental EIS shall not necessarily:
- 1. Prevent the granting of new approvals;
- 2. Require the withdrawal of previous approvals; or
- 3. Require the suspension of project activities; for any activity not directly affected by the supplement. If the changes in question are of such magnitude to require a reassessment of the entire action, or more than a limited portion of the overall action, FHWA shall suspend any activities that would have an adverse environmental impact or limit the choice of reasonable alternatives, until the supplemental EIS is completed.
More detailed discussion of supplemental NEPA documents can be found on FHWA’s web site.
If an acceptable FEIS is not submitted to the Federal Highway Administration (FHWA) within 3 years from the date of the DEIS circulation, the LPA shall prepare a written reevaluation of the DEIS in cooperation with FHWA. This reevaluation is used to determine whether a supplement to the DEIS or a new DEIS is needed.
A written reevaluation of the FEIS may be required before further approvals are granted if major steps to advance the action (e.g., authority to undertake final design, authority to acquire a significant portion of the right-of-way, or approval of the plans, specifications, and estimates) have not occurred within three years after the approval of the FEIS, final EIS supplement, or the last major FHWA approval or grant.
Factors such as noteworthy changes in the scope and/or location of the project, whether the project is active or inactive, and changes in environmental laws or regulations can also require a NEPA document reevaluation. Once completed and approved, a NEPA document has a limited shelf life of three years, even when portions of the project are under construction or have already been constructed, as is often the case for lengthy corridor projects. After approval of the ROD, FONSI or CE designation and prior to requesting any major approvals or grants, the LPA shall consult with MoDOT to establish whether the approved environmental document or CE designation remains valid for the requested FHWA action. These consultations will be documented when determined necessary by FHWA.
Whenever the project scope or location changes, the LPA will submit to the MoDOT district contact a Request for Environmental Review (RER) form that describes and shows the changes. Based on that information, the project will be reexamined to determine whether the proposed changes require a reevaluation. When a reevaluation is needed, the LPA prepares the reevaluation documentation. In most cases, the reevaluation is submitted to the FHWA for review and approval. Documentation for reevaluations is based on the original NEPA document type. If the original NEPA document was an EA or EIS, the LPA prepares a letter documenting the reevaluation and submits it to MoDOT for FHWA’s review and approval. Some projects with original NEPA classifications as CEs may also require reevaluations in the form of a letter. FHWA does not routinely require reevaluations in the form of supplemental EAs or EISs. More detailed discussion of NEPA reevaluations can be found on FHWA’s web site.