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I. Introduction
Since 1970, environmental legislationhas created complex environmental documentation and permitting requirements. This has resulted in different agencies developing varied and intricate processes such as "The Highway Project Development Process", "The NEPA Process" or "The 404 Permitting Process" to name a few major ones.
For major Federal-aid highway projects, Clean Water Act (CWA) 404 permit application processes that are not concurrent with the National Environmental Policy Act of 1969, (NEPA) analysis may entail reevaluation of environmental documentation and could incur project delays and cost increases. One key agency where this issue applies is with the Corps of Engineers (COE) and the CWA Section 404 permit process. On Federal highway projects, a 404 permit is often required and the process to acquire the permit is typically initiated and completed long after completion of the highway project's NEPA environmental analysis and documentation.
The merging of the NEPA/404 permit processes will facilitate the development of a coordinated NEPA environmental document and 404 permit application. This will minimize the risk of environmental conflicts and redundant reevaluations during the 404 permit process.
II. Objectives
The objectives of these Nebraska Local Operating Procedures are to:
III. Definitions
Concurrence
Written determination by an agency that information to date is adequate and agreement that the project can be advanced to the next stage of project development. Agencies agree not to revisit a previous stage unless an agency believes that reconsideration is necessary in furtherance of its responsibilities under NEPA, the Clean Water Act, or implementing regulations.
Concurrence Point
Point where the Nebraska Department of Roads (NDOR) or Federal Highway Administration (FHWA) requests formal concurrence.
Major Federal-Aid Transportation Project
A project being funded by FHWA, and requiring the preparation of an environmental impact statement or environmental assessment.
PDEIS
Preliminary Draft Environmental Impact Statement (DEIS); in other words, working copies prior to formal circulation of the DEIS.
IV. Authority
This list is not intended to be all inclusive.
National Environmental Policy Act of 1969 (NEPA), as amended: Federal agencies must consider environmental factors through a systematic interdisciplinary approach prior to committing to a course of action.
23 CFR Part 771:This regulation prescribes the policies and procedures of FHWA for implementing the NEPA and the regulations of the Council on Environmental Quality.
Clean Water Act of 1977 (CWA), as amended:The primary objective of the CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters (lakes, wetlands, streams, and other aquatic sites).
Section 404 of the CWA:This section requires a permit be issued by the COE for the discharge of dredged or fill material into waters of the United States.
Section 404(b)(1) Guidelines:The guidelines contain substantive environmental criteria used in evaluating discharges of dredged or fill material into waters of the United States. They require the analysis of practicable alternatives which avoid and minimize impacts to such waters.
Executive Order 11988:This EO affects projects when there are significant floodplain encroachments.
Executive Order 11990:This EO requires opportunity for early public involvement on any project affecting wetlands.
Executive Order 12898: Environmental Justice; the purpose of this EO is to avoid Federal actions which cause disproportionately high and adverse impacts on minority and low income populations with respect to human health and the environment.
V. Policy
The Department of Transportation's National Transportation Policy reflects a commitment to protecting the environment and our quality of life. FHWA's Environmental Policy Statement of November, 1994, fosters effective communication and coordination during project development along with protecting and enhancing the environment on our transportation projects. FHWA's Region 7 Environmental Implementation Plan of January, 1993, promotes the integration of the NEPA requirements and the regulatory programs of various agencies during the transportation development process.
By the May 1, 1992, joint memorandum, "Implementation of the Intermodal Surface Transportation Act (ISTEA)," Environmental Protection Agency (EPA) Administrator William K. Rielly, Assistant Secretary of the Army, Nancy P. Dorn, and Secretary of Transportation, Andrew H. Card, stated that streamlining and improving the efficiency of the environmental review and clearance process and taking prompt action on Section 404 permit applications would help further the objective of successful implementation of ISTEA. This memorandum stated that the COE, EPA, Fish and Wildlife Service (F&WS), National Marine Fisheries Service, and FHWA had jointly published as guidance the document "Applying the Section 404 Permit Process to Federal-aid Highway Projects" (commonly called the "Redbook") and further stated "Effective immediately, it will be the official policy of FHWA, the Corps, and the EPA to fully implement the intent of the 'Redbook'."
Section 1309 of the Transportation Equity Act for the 21st century calls for a coordinated review process to expedite Federal highway and transit projects (Environmental Streamlining).
It is clear that the leadership of the EPA, COE, F&WS, and the FHWA are committed to fulfilling their responsibilities to protect and enhance the environment and to promote early coordination and communication among Federal, State, local agencies and the public.
VI. Procedures
The "Nebraska Local Operating Procedures for Integrating NEPA/404" will provide for the following:
1. Both the COE and FHWA are responsible for assessing environmental impacts under NEPA. The FHWA environmental documentation must satisfy COE NEPA responsibilities if it is to be used for processing a Section 404 permit.
These procedures will apply to Major Federal-Aid Transportation Projects requiring the preparation of an EIS or an EA when a COE Section 404 permit is required. Required determination on use of the merge process will be made during project review.
2. The information to complete the 404 permit application may not be available when the Environmental Document is being developed, however, the intent is to initiate consideration of 404 permit issues. Consistent with the spirit and intent of the "Redbook", it is very desirable to direct COE and resource agency attention to Section 404 issues when such input is valuable to the evaluation of the alternatives and to have concerns identified when there is maximum opportunity to resolve them.
3. NDOR will continue to develop Federal-Aid Projects consistent with 23 CFR 771 and T6640.8A. The merged NEPA/404 process supplements and is not considered a major revision to these guidelines.
4. The Nebraska NEPA/404 Process provides for four written concurrence points: Purpose and Need, Alternatives Carried Forward, Selected Alternative and Impact Minimization. The first two points are reached prior to the approval of the Draft Environmental Statement. The second two points are processed during the review of the Final Environmental Statement. Unless there are unresolved issues when the Final Statement is completed, the last two concurrence points would be combined.
The attached flow charts identify the steps an FHWA funded project moves through in the Project Development process and the points of concurrence.
5. Nothing provided for in these procedures or its attachments shall be construed to limit the scope of authorities, responsibilities, or input by any signatory agency or to limit opportunity for input into the NEPA and 404 processes by any individual or group.
6. In the interest of timely review, a response due date will be given in the request for comments or concurrence. If additional review time is needed, please contact FHWA prior to the date given. No response will be considered agreement in the concurrence point under consideration.
VII. Effective Date and Termination
These local operating procedures shall be in effect upon the last signature date and shall remain so until such time as any of the parties withdraw from full participation. Withdrawal from these procedures shall be deemed to occur 30 days after written notice is provided to all parties. These local operating procedures may be reviewed and modified if necessary, when mutually agreed to by all parties.
Signatories
Federal Aid Index Page | Nebraska Index Page | Top of Page
(402)437-5765
Federal Building, Room 220
100 Centennial Mall North
Lincoln, NE 68508-3803
NEBRASKA.FHWA@FHWA.DOT.GOV
