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).
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:
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:
This Agreement provides for:
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:
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.
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.
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.
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.
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.
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.
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.
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.
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