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CATEGORICAL EXCLUSION AGREEMENT

BETWEEN

THE FEDERAL HIGHWAY ADMINISTRATION

AND

THE KENTUCKY TRANSPORTATION CABINET



CATEGORICAL EXCLUSION AGREEMENT

This Agreement supercedes all previous Categorical Exclusion (CE) processing agreements held between the Federal Highway Administration (FHWA) and the Kentucky Transportation Cabinet (KYTC).

INTRODUCTION

In keeping with the FHWA-Kentucky Division Office and KYTC Interagency Consensus on Streamlining the NEPA Process for Transportation Projects, approved on March 3, 1998, this Agreement revises procedures for processing projects classified as CE as defined in Section 23 Code of Federal Regulations (CFR) 771.117 (and as amended).

This Agreement establishes a procedure that will reduce the paperwork and processing time for certain federal actions that do not have significant impacts on the human and natural environment. In entering into this Agreement, KYTC agrees to act in conjunction with FHWA in assuring compliance with all applicable federal environmental and related requirements. This Agreement has been developed in conformance with the policy and procedures for environmental process of CE actions as defined in Section 23 CFR 771.117 (and as amended).

KYTC and FHWA concur with the classification of certain types of CEs, which normally are found to have no significant social, economic and environmental effect. KYTC agrees that all the conditions stated in this Agreement will be satisfied for all projects processed under the Agreement.

In accordance with FHWA regulations (23 CFR 771, "Environmental Impact and Related Procedures"), CEs are actions which meet the definition contained in the Council on Environmental Quality (CEQ) regulations, 40 CFR 1508.4, and based on past experience with similar actions, do not involve significant environmental impacts. They are actions which:

  • Do not induce significant impacts to planned growth or land use for the area,
  • Do not require the relocation of significant numbers of people
  • Do not have a significant impact on any natural, cultural, recreational, historic or other resource,
  • Do not involve significant air, noise or water quality impacts,
  • Do not have significant impacts on travel patterns, or
  • Do not otherwise, either individually or cumulatively, have any significant environmental impacts and are, therefore, excluded from the requirement to prepare an EA or EIS.

KYTC and FHWA agree to assess the significance of impacts on a project-by-project basis applying the context and intensity factors listed below to the specifics of the project, rather than establishing program-wide numerical or qualitative thresholds. Significance is defined in the CEQ regulations at 40 CFR 1508.27. Significance varies with the setting of the proposed action, and short/long-term effects should be considered. Impacts might be considered in the context of society as a whole, the affected region or locality. With a site-specific action, significance would usually depend on the effects in the locale, rather than in the world as a whole. The intensity of potential impacts will provide a great deal of information about the project.

Whether an impact is a significant impact depends not only on the absolute value of an impact, but also on the circumstances under which the impact is considered.

Factors to consider regarding intensity or severity of impacts include:

  1. Impacts that may be both beneficial and adverse. A significant effect may exist even if the federal agency believes that on balance the effect will be beneficial.
  2. The degree to which the proposed action affects public health or safety.
  3. Uniqueness characteristics of the geographic area such as proximity to historic or cultural resources, parkland, prime farmland, wetlands, wild and scenic rivers, or ecologically critical areas.
  4. The degree to which the effects of the quality of human environment are likely to be highly controversial.
  5. The degree to which the effects on the quality of the human environment are highly uncertain or involve unique or unknown risks.
  6. The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
  7. Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulative significant impact on the environment. Significance cannot be avoided by breaking it down into small component parts.
  8. The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for the National Register of Historic Places or may cause loss of significant scientific, cultural or historical resources.
  9. The degree to which the action may adversely affect an endangered or threatened species or its habitats that has been determined to be critical under the Endangered Species Act of 1973.
  10. Whether the action threatens a violation of federal, state or local laws or requirements imposed for the protection of the environment.

PROVISIONS

This Agreement provides for:

  1. KYTC Districts and KYTC's Division of Environmental Analysis (DEA) to act cooperatively with and on behalf of FHWA in assuring compliance with all applicable federal environmental and related requirements.
  2. A process that will be consistent in documenting information that allows for defensible CEs on a statewide basis.
  3. An efficient process that is concise and easy to follow.
  4. A process that is easy to follow and would allow the District Environmental Coordinators, Project Managers, DEA and FHWA personnel to make appropriate decisions based on the information provided.
  5. A process that utilizes technological or innovative advances to reduce the amount of paperwork required for CE processing.
In carrying out this Agreement, KYTC and FHWA agree to a listing of programmatic project actions and three levels of review and approval for CE projects. The appropriate level of CE is determined based on the type of action and the impact of the project.

PROGRAMMATIC CE PROJECT ACTIONS

Based on past experience with similar environmentally insignificant actions, FHWA and KYTC have concluded and are documenting under this Agreement the actions listed below constitute CE actions and will not indirectly or cumulatively cause significant impacts to the human and natural environment. These actions meet the criteria of 23 CFR 771.117(a) and (c), and 40 CFR 1508.4, "and normally do not require any further NEPA reviews by the Administration." The District Environmental Coordinator (DEC) shall confirm that these actions meet the above criteria for Programmatic CE Project Actions and a note will be placed on the FHWA Programming Document (Form PR-1) stating that the activity is a Programmatic CE Project Action. Programmatic CE Project Actions include the following:

  1. General highway maintenance, including filling potholes, crack sealing, mill and resurfacing, joint grinding/milling, etc.
  2. Guardrail replacement where no new bank stabilization is required.
  3. The replacement of traffic signals within existing ROW (provided no work takes place within any historic districts and no likelihood of encountering contaminated materials).
  4. The installation or maintenance of signs, pavement markings and/or replacement fencing within the existing ROW.
  5. General pavement marking or "line painting" projects.
  6. The installation of raised pavement markers.
  7. Herbicidal spraying within existing ROW.
  8. Mowing or brush removal/trimming projects within existing ROW.
  9. Improvements to existing KYTC/County maintenance facilities.
  10. Study-type projects (i.e. feasibility studies, etc.).
  11. Installation of new fencing, signs, small passenger shelters, traffic signals and railroad warning devices where no substantial land acquisition, traffic disruption or elimination of on-street parking will occur.
  12. Approval of utility installations along or across a transportation facility provided no drainage of wetlands will occur.
  13. Emergency repairs under 23 U.S.C. 125. Necessary work to restore essential travel, typically within 180 days of the event. Includes emergency projects like mine collapse, flooding damage, etc.
  14. Acquisition of scenic easements.
  15. Transfer of federal lands pursuant to U.S.C. 317 when the subsequent action is not an FHWA action.
  16. Improvement or construction of bicycle and pedestrian lanes, paths or facilities.

CE PROJECT LEVELS

If FHWA or KYTC believes that the above Programmatic Project Actions need to be evaluated more closely than the Programmatic CE Project Action procedures entail, these project actions as well as other project actions listed in Table 4 of this Agreement may be processed as CEs below, which have been divided into three levels of review and procedures.

CE LEVELS 1, 2 AND 3 OF REVIEW AND PROCEDURE

Projects listed in Table 4 of this Agreement which have been historically determined to have no significant impacts to the human and natural environment, may be processed as a CE after the appropriate review and procedures are followed as outlined below for the various levels of project actions. CEs have been divided into three levels (1, 2 and 3). The level in which the project is processed and who has signature authority is based on the context and intensity of impacts associated with the project. For example, if the impacts associated with a project fall within the parameters agreed to by FHWA and KYTC in Table 1, the project may be processed as a CE Level 1 project, and therefore, the KYTC District (District) in which the project is located has review and signature authority. Likewise, if the impacts associated with a project action fall within the agreed parameters listed in Table 2, the project may be processed as a CE Level 2, and the KYTC Division of Environmental Analysis (DEA) has review and signature authority. If the impacts associated with a project exceed the agreed parameters but the project still qualifies as a CE Level project, FHWA has review and signature authority. FHWA shall be provided a copy of all CE documents approved under Levels 1 or 2.

CE LEVEL 1 CRITERIA

CE Level 1 projects are projects that have been determined to have little or no impact to the environment. The DEC shall confirm that these actions meet the criteria for CE Level 1 projects as noted in Table 1 and no significant impacts exist. The DEC and the KYTC District Project Manager (Project Manager) signature is required for CE Level 1 projects. DEA requires that the CE Checklist and necessary supporting documentation be completed and kept on file by the District. Copies of these documents shall be provided to both DEA and FHWA. Projects that do not meet the criteria Level 1 projects may be processed as a CE Level 2 project. Context and intensity of impacts must also be considered when determining whether elevation to a highway level is appropriate, even if the Level 1 criteria are satisfied. Conversely, if Level 1 criteria are not satisfied, but context and intensity analysis determines that the effect of those criteria that is exceeded are minimal and that the criteria listed in Table 2 is not exceeded, then DEA may delegate approval of the document back to the District.

TABLE 1

Projects involving any of the following will not be considered eligible for processing as a Level 1 CE:

  • Any disproportionately high and adverse impacts relative to environmental justice
  • Unresolved or substantial public and/or resource agency oppositionˇ
  • Impacts to areas of cultural or religious significance to Native American tribes
  • Projects resulting in nonconformity with air quality standards
  • Federal or proposed federal wild and scenic river corridor impacts that result in an Individual 4(f) Impact/Use
  • Impacts to federally listed threatened or endangered species
  • Individual Section 4(f) Impacts/Use
  • Section 6(f) Impacts

Projects that involve more than one of the following will not be considered eligible for processing as a CE Level 1 without the written consent of the DEA Director or his designee. (If only one of the impact areas is affected, all necessary coordination and supporting documentation must be attached to the CE Level 1):ˇ

  • Programmatic 4(f) impacts (Approved by DEA and FHWA)
  • Individual 404
  • The reconstruction and/or addition of through travel lanes of an existing facility, which is more than 1 mile in length of new ROW
  • Construction of an interchange to replace an existing at grade intersection

Impacts of CE Level 1 Projects Can Involve:

  1. Minor right-of-way (ROW) acquisition involving a maximum of 10 acres or involving a maximum of 5 relocations.
  2. Minor amounts of hazardous materials (involvement limited to petroleum related underground storage tanks and/or releases, asbestos and lead based paint).
  3. Wetland impacts that are below the threshold that require a Nationwide Permit.
  4. Section 106 impacts provided necessary documentation of consultation is included in the project files as required by 36 CFR Part 800.
  5. Section 4(f) impacts/use that fall within the bounds of a Programmatic 4(f) provided that the determination has been approved by DEA and FHWA.
  6. Minor public or agency controversy on environmental grounds that has been resolved.



CE LEVEL 2 CRITERIA

The following criteria apply to projects classified as CE Level 2 projects. The determination that these actions under the criteria of CE Level 2 projects will be made by DEA. The review and signature of the Director of DEA or his designee, the Project Manager, and the DEC are required for CE Level 2 projects. The Director of DEA may, at his discretion and in writing, review and agree to the processing of a Level 2 CE by the DEC and Project Manager if provided sufficient documentation to warrant such action and if the criteria for a CE Level 2 project (Table 2) are not exceeded. Projects that do not meet the following criteria may be processed as CE Level 3 projects. Context and intensity of impacts must also be considered when determining whether elevation to a Level 3 is appropriate, even if the Level 2 criteria are satisfied. Conversely, if Level 2 criteria are not satisfied but context and intensity analysis determines that the effects of those exceeded criteria are minimal, then FHWA may delegate approval of the document back to the KYTC.

TABLE 2

Projects that involve any of the following will not be considered eligible for processing as a CE Level 2:ˇ

  • Any disproportionately high and adverse impacts relative to environmental justiceˇ Unresolved or substantial public and/or resource agency opposition
  • Impacts to areas of cultural or religious significance to Native American tribesˇ Projects resulting in nonconformity with air quality standards
  • Federal or proposed federal wild and scenic river corridor impacts that result in an Individual 4(f) Impact/Use
  • Impacts to federally listed threatened or endangered speciesˇ Individual Section 4(f) Impacts/Use
  • Section 6(f) Impacts

Impacts of CE Level 2 Projects Can Involve:

  1. Right-of-way (ROW) acquisition involving a maximum of 10 relocations and/or up to (25 acres) of permanent right-of-way.
  2. Section 106 impacts, provided necessary documentation of consultation is included in the project files as required by 36 CFR Part 800.
  3. Wetland impacts that arise to a Nationwide or Individual Permit.4. Section 4(f) impacts/use that fall within the bounds of a Programmatic 4(f) provided that the determination has been approved by FHWA.

CE LEVEL 3 CRITERIA

Actions with impacts not discussed in this Agreement or with higher impacts than listed in Table 2 require coordination with FHWA. Appropriate environmental documentation must be submitted to FHWA so that a review and determination can be made as to the level of review and documentation needed for the project under NEPA. In some cases, FHWA may decide that the project be elevated to an Environmental Assessment (EA). The signature of the FHWA Area Engineer is required for all CE Level 3 projects. Projects in this category must meet the criteria and intent of 23 CFR 771.117. Based on past experience with similar actions, these actions do not involve significant environmental impacts.

TABLE 3

Projects that involve any of the following may only be considered eligible for processing as a CE Level 3 with the written approval of FHWA.

  • Any disproportionately high and adverse impacts relative to environmental justice
  • Unresolved or substantial public and/or resource agency opposition.
  • CE documentation must demonstrate that the public or agency concerns have been addressed and is attached.
  • Impacts to areas of cultural or religious significance to Native American tribes
  • Projects resulting in nonconformity with air quality standardsˇ Federal or proposed federal wild and scenic river corridor impacts that result in an Individual 4(f) Impact/Use
  • Impacts to federally listed threatened or endangered species
  • Individual Section 4(f) Impacts/Use
  • Section 6(f) Impacts

CE PROJECT DESCRIPTION

Projects listed in Table 4 of this Agreement which have no significant impacts to the human and natural environment may be processed as a CE Level 1, 2 or 3 document.

TABLE 4

  1. Culvert and structure replacement/reconstruction that involve no more than minimal additional right-of-way necessary to grade around the new bridge/culvert plus any necessary channel work (All permits and coordination are still required).
  2. Beautification or facility improvement projects (i.e. landscaping, curb and gutter installation, installation of park benches, decorative lighting, etc.)
  3. Wetland mitigation activities.
  4. Tower lighting projects.
  5. Track and rail-bed improvements, maintenance activities or acquisition.
  6. Disposal of excess right-of-way or for joint or limited use of right-of-way where the proposed use would have minimal or no adverse social (including highway safety) economic or environmental impacts.
  7. Approvals for changes in access control that involve the National Highway System and limited access ROW in accordance with 23 CFR Part 710 Subpart D - Real Property Management. (Projects that are processed with federal funds and require changes in access control must be approved by an FHWA ROW Officer.)
  8. Transportation corridor fringe parking facilities, park-and-ride lots and ridesharing activities which have no significant environmental impacts.
  9. Modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction or adding auxiliary lanes (e.g., parking, weaving, turning, climbing, shoulders). When adding through lanes on an interstate or interstate-like freeway, consultation and approval from FHWA is required.
  10. Highway safety, truck escape ramps or traffic operation improvement projects including the installation of ramp metering control devices and lighting.
  11. Bridge rehabilitation, reconstruction or replacement.
  12. Construction of realignments on new location (not to exceed 2 miles in realignment length).
  13. Construction of a minor new highway facility (with the exception of interstate or "interstate-like" freeways) on new location. (Must be less than 1 mile in length.)
  14. Modification of an existing interchange or the construction of an interchange or a grade separation to replace an existing at grade intersection (with the exception of the interstate system).
  15. Noise walls/mitigation projects.
  16. Construction of new truck weigh stations or rest areas.
  17. The construction of a grade separation to replace existing at grade railroad crossings, or the removal of existing railroad grade separation structures.
  18. Rehabilitation, reconstruction or conversion of existing rail and bus buildings and ancillary facilities where only minor amounts of additional land are required and there is not a substantial increase in the number of users.
  19. Construction or conversion of rail storage and maintenance facilities in areas used predominantly for industrial or transportation purposes where such construction is not inconsistent with existing zoning and where there is no significant noise impact on the surrounding community.
  20. Construction of new bus storage and maintenance facilities in areas used predominantly for industrial or transportation purposes where such construction is not inconsistent with existing zoning and located on or near a street with adequate capacity to handle anticipated bus and support vehicle traffic.
  21. Construction of bus transfer facilities (an open area consisting of passenger shelters, boarding areas, kiosks and related street improvement) when located in a commercial area or other high activity center in which there is adequate street capacity for projected bus traffic.
  22. Construction of KYTC storage and maintenance facilities in areas used predominantly for industrial or transportation purposes where such construction is not consistent with existing zoning and where there is no significant environmental impact.
  23. Bridge deck overlays, bridge deck replacements and other maintenance activities, including bridge painting projects provided the project doesn't involve any work within or involve impacts to streams, rivers, scenic river corridors or historic properties.
  24. Disposal of excess ROW parcels wholly contained in recent Major Project Acquisitions.

GENERAL

For all actions processed under this Agreement, all project impacts, regardless of CE Level, must be assessed for context and intensity (40 CFR 1508.27) as outlined previously in this Agreement. Per 771.111(h)(2)(i) and (ii), every federal action requires some level of public involvement, including providing for early and continuous opportunities through the project development process. The level of public involvement should be commensurate with the proposed action.

All coordination, evaluations, and determinations made by KYTC under this Agreement will be adequately documented. This documentation will provide a consistent decision-making process resulting in a more thorough and efficient advancement of projects that are expected to have minor environmental impacts.

This Agreement shall not preclude the KYTC from requesting individual CE review and approval from the FHWA when deemed necessary even though the action falls within the bounds of a Level 1 or 2 CE or the list of Programmatic CE actions. This Agreement shall not preclude processing projects outside the bounds of this Agreement with FHWA's participation and approval. This Agreement shall also not preclude the FHWA the right to request, for individual review, actions that fall within the bounds of CE Levels 1 or 2 or the list of Programmatic CE actions.

FHWA has developed the attached Programmatic Wetland Finding for all actions processed under this Agreement.

RE-EVALUATIONS

KYTC agrees to re-evaluate the CE classification on all proposed actions prior to requesting subsequent major project approvals to establish whether or not conditions of the project have changed and to determine if the NEPA determination remains valid for the action. For CEs processed prior to the execution of this Agreement, re-evaluations shall be conducted at the appropriate level as defined herein. Projects, which upon re-evaluation remain within the limits of Levels 1 or 2, need no further NEPA coordination with FHWA.

The conditions of this Agreement shall also be considered when re-evaluating projects that were previously approved as Environmental Assessments/Findings of No Significant Impact (FONSI). Where the impacts of the project fall within those outlined for CE Levels 1 or 2, KYTC will conduct the re-evaluation, and approvals shall be in accordance with those specified for the appropriate and applicable Level of CE. If the re-evaluation determines that the FONSI is no longer valid, FHWA will be consulted to determine the appropriate supplemental environmental document.

DISAGREEMENT RESOLUTION

It is the intent of this Agreement that all disputes and issues be solved at the lowest level of grade personnel in KYTC and FHWA. For resolution of disputes regarding project action context and intensity determinations and review, the Chief Environmental Program Administrator (CEPA) will represent KYTC and the Environmental Program Manager will represent FHWA. A collaborative decision will be made in 14 working days.

EVALUATION

Full compliance with this Agreement will be determined through a process review to be jointly conducted by FHWA, DEA and KYTC District staff. The results of such reviews will be used to determine what Agreement modifications, if any, may be appropriate. The first review shall occur within the first six months of full implementation of this Agreement. A second process review will occur one year after the initial review. Subsequent reviews will be determined as needed.

REVISION AND TERMINATION

This Agreement and its appendices may be revised by mutual consent of both parties or terminated by either party within 30 days of written notification. If any part of this Agreement is determined to be in conflict with existing state or federal laws or regulations, it does not invalidate the remainder of the Agreement.

STATEMENT OF ADOPTION

It is hereby determined that the CE projects that are determined to satisfy the criteria and requirements of this Agreement are actions which meet the definition of a CE in 40 CFR 1508.4, and based upon past experience with similar actions, do not involve significant environmental impacts. They constitute actions which: do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, individually or cumulatively, have any significant environmental impacts and do not require the preparation of an Environmental Assessment or an Environmental Impact Statement under NEPA.

APPROVED:

___________________________________
Jose Sepulveda
Division Administrator
Kentucky Federal Highway Administration

___________________________________
Date
___________________________________
James C. Codell, III
Secretary
Kentucky Transportation Cabinet

___________________________________
Date



Approved as to for and legal
sufficiency under Kentucky law



___________________________________
KYTC Office of General Counsel
___________________________________
Date

For questions or feedback on this subject matter content, please contact Owen Lindauer at 202-366-2655.

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