Regulatory Updates for
Transportation Specialists
PAEP Conference
May 8, 2014
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MAP-21 Sections
1316 & 1317
New Categorical Exclusions:
Operational Right of Way
23 CFR 771.117(c)(22)
Limited Federal Assistance
23 CFR 771.117(c)(23)
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BACKGROUND
• October 1, 2012 – MAP-21 goes into effect
• February 28, 2013 – FHWA & FTA publish the
NPRM in which proposed 2 new CEs for
listing in their joint NEPA regulations
• January 13, 2014 – The Final Rule for the 2
CEs is published
• February 12, 2014 – The effective date for
the 2 new CEs
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THE NEW REGULATION (con’t)
– Remember:
The new rule results in the addition of two
new categories of “action” to 23 CFR
771.117(c)
The rule and MAP-21 do not alter the rest
of the CE regulation - 23 CFR 771.117(a),
(b), or (d)
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23 CFR 771.117(c)(22)
Projects entirely within the “Existing Operational ROW”.
• The regulation’s second sentence defines the
meaning and extent of this phrase, through the use
of terms:
– disturbed right-of-way
– existing transportation facility
– maintained for a transportation purpose
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23 CFR 771.117(c)(22)
• Portions of ROW not disturbed or not
maintained for transportation purposes are
not in the existing operational right-of-way.
• ROW previously acquired for future project
does not qualify
• Uneconomic remnants, excess ROW does not
qualify
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23 CFR 771.117(c)(22) (con’t)
Operational ROW
• …includes features assoc. w/ physical footprint
–
–
–
–
Roadway, bridges, interchanges
Culverts and drainage
fixed guideways
mitigation areas, etc.
• …areas maintained for transportation purposes
–
–
–
–
clear zone
traffic control signage
Landscaping
any rest areas with direct access to…highway, …
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23 CFR 771.117(c)(22) (con’t)
• Areas maintained for safety and security
• Parking facilities with direct access to an existing
transportation facility
• Transit power substations & venting structures, &
transit maintenance facilities.
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23 CFR 771.117(c)(22) (con’t)
Q: Can this CE be applied to a project requiring a
temporary easement/temporary work located
outside of the operational ROW?
A: YES, but the final project must be entirely
within the operational right-of-way.
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23 CFR 771.117(c)(23)
Limited Federal Assistance: the new regulation
reads:
(23) Federally-funded project:
(i) That receive less than $5,000,000 of Federal
funds; or
(ii) With a total estimated cost of not more than
$30,000,000 and Federal funds comprising less
than 15 percent of the total estimated cost
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23 771.117(c)(23) (con’t)
Is a project’s amount of Federal funding an
indicator of the significance of its environmental
impacts?
• This CE is still subject to the requirements of the
CE regulation – basically, that there are no
significant impacts associated with the action (23
CFR 771.117(b)).
• Other environmental laws still apply, which can
result in this CE’s inapplicability
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23 CFR 771.117(c)(23) (con’t)
• This CE is only available for FHWA and
FTA actions.
• Project must have Federal Funding, not
just Federal action (such as POA).
• Can have other federal approvals and still
qualify, but must have federal funding
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23 CFR 771.117(c)(23) (con’t)
Changes to “Total Estimated Costs”
A Re-evaluation of the CE will be triggered when:
• The amount of Federal funds in the project
increase beyond the specified thresholds, and
• There is still an FHWA/FTA action to be taken
when the changes in costs occur.
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Project Needs:
Highlights
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Project Needs
• Problems, not solutions
• Real, not perceived
• Analyze data, if data doesn’t support a need,
don’t include it
– Crash data
– ADT/LOS
– EMS input
– load types & detour lengths
– sight distance issues
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Perception Issues
• The purpose & need molds the alternatives
development & selection
• The preferred alternative does NOT mold the
purpose & need
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Bridge Feasibility Reports
Tips, Common Pitfalls, etc.
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Purpose of the Report
• The purpose of this report is to determine if
Rehabilitation:
– Meets the purpose & need
– While preserving the historic integrity
• It does not replace Section 4(f) analysis
• It is only one part of the Section 106 process
• Intended to show that rehab was considered
early on, and given serious consideration
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Common Pitfalls
• Purpose & Need is determined in NEPA and
carried to this report, not determined here
• Do not discuss replacement alternatives
• Do not use Section 4(f) terminology
• This is not the NEPA analysis
• Consider rehab options that don’t require
design exceptions first
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Review and Posting
• All bridge feasibility reports must be
submitted to FHWA for review and
concurrence prior to submission to PHMC and
posting to ProjectPATH.
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CE Re-evaluations:
Quick Tip
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CE Re-evaluations
• Package Document to show changes
– Not just topic, but HOW it changed
– Ex. – wetland impacts decreased by 0.2 ac
• Key Changes to include:
– Update T&E clearance or coordination
– Status of ROW
– Mitigation commitment updates
– Changes to design/impacts
– Additional coordination or public involvement
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Individual Section 4(f)
Evaluations
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Section 4(f) Evaluations
• Revised 4(f) handbook to be published shortly
• Minor but important phrase change:
– Previous Approach: used “feasible & prudent test”
for alternatives that totally avoided Section 4(f)
resources, as well as those that avoided only some
(but not all).
– New Approach: As per 23 CFR 774, the feasible and
prudent test can only be used for alternatives that
totally avoid Section 4(f) resources. In theory, all
others would be taken into the Least Overall Harm
(LOH) Analysis.
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Section 4(f) Evaluations (cont)
• The concern – studying alternatives in detail during LOH
that don’t meet the needs, or have extraordinary impacts.
• The solution - Create a section titled Preliminary
Alternatives Considered. In the past, we would have
dismissed alternatives here as not feasible and prudent and
explain why they were not feasible/prudent. Now, instead
of using the term “not feasible and prudent”, you will need
to state that you are “dismissing them from further
consideration because they were determined to be
unreasonable during the environmental review process”
and explain why they are unreasonable. As before, you
would then not carry them into the LOH analysis.
• Full details will be provided in the revised 4(f) Handbook.
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Pennsylvania State Transportation
Innovation Council (STIC)
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STIC
• The State Transportation Innovation Council (STIC) is:
– A multi-stakeholder leadership approach to facilitate the
rapid implementation of proven, well-researched
technologies, tactics, and techniques
• It is not…
– A venue for unproven, unverified suggestions or ideas
• Role of the STIC:
– Provide leadership to promote selected initiatives
– Create a culture where innovation is standard
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Technical Advisory Groups
• There are 10 TAGs
• The TAGs will…
– Conduct first-screen of proposed initiatives
– Prepare and present White Papers
– Monitor and report on deployed initiatives
• PAEP is a member of 4 of the 10 TAGs
–
–
–
–
Environmental
Design
Project Delivery
Public Outreach
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PAEP Member Roles
• What is the role for you as a PAEP member?
– The TAGs need their members to generate ideas
– Contact the PAEP TAG representative to develop
and submit a nomination form
– It is up to you to help PAEP provide innovative
ideas
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Examples of Nominations
• Environmental TAG:
– Total Riparian Ecosystem Mitigation Partnership
– CE Expert System Rewrite
– Resource/Conservation Banking
– Way-finding signs for water trails
– On-line Mitigation tracking system
– Online consultation for species of special concern
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Questions?
Camille Otto
Federal Highway Administration
Environmental Program Manager
camille.otto@dot.gov
717-221-2238
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