While environmental coordination begins early in project development, sometimes the full extent of a project’s environmental impacts are not evident until later stages of the process.

On most projects, project development progresses to a point where KYTC can prepare an environmental document and obtain environmental approvals. 23 CFR 771 defines environmental approvals as “acceptance of the general project location and concepts described in the environmental review documents.” Final design activities, property acquisition, and purchase of construction materials cannot proceed without environmental approvals.

An approved environmental document summarizes where the project is today and outlines commitments made to get an environmental approval. Sometimes, an environmental document receives a conditional approval.

The Division of Environmental Analysis (DEA) usually begins the environmental process during Phase 1 design. While it is possible to begin addressing certain items earlier, generally the project’s footprint is not entirely known until ROW plans are prepared. A higher level of design detail may be required to determine the magnitude and extent of some impacts. For example, information on pipe length and bridge layout is needed to determine stream impacts.

On utility relocations, KYTC’s goal is to avoid environmental impacts. But if a project design cannot be modified to avoid impacts, steps should be taken to minimize impacts. And if it is not possible to minimize impacts, they need to be mitigated using other techniques.

Utility relocation work can impact the following :

• Archeology — Historic and pre-historic
• Cultural-Historic Resources — Standing structures, farms, etc.
• Endangered Species — Endangered or threatened species.
• Hazardous Materials — Underground storage tanks, asbestos, etc.

Many projects encounter right-of-entry issues, but smaller projects tend to face fewer challenges. Larger projects can have access issues on 50% –75% of properties. Changes in ROW can require additional archeological work.

5.2 Cultural-Historic Resources

Evaluating whether a project impacts cultural-historic resources entails the following: 

• Surveys are conducted to determine if properties are eligible for the National Register of Historic Places.
• Project effects are coordinated with SHPO to determine if there is an adverse effect to a historic resource.
• If additional impacts are discovered during project development (ROW revisions) or construction, KYTC must re-coordinate with SHPO.
• Commitments are often made to avoid an adverse effect.
• Mitigation is required for adverse effects.
• Project mitigation may be required for direct or indirect impacts.
• Project mitigation may require mitigation for viewshed impacts.
• Mitigation can include but is not limited to:
  • Written and photographic documentation
  • Tree planting, rebuilding stone walls, museum exhibits, and signage

5.3 Endangered Species

Utility work must adhere to regulations in the Endangered Species Act. Surveys may be required to determine if endangered species or critical habitat are present within the project footprint.

Utility relocations should avoid taking an endangered species. Take includes a wide range of actions that can negatively impact endangered or threatened species, including but not limited to harming, harassing or killing them.

DEA has agreements with FHWA and United States Fish and Wildlife Service (USFWS) that outline procedures for assessing impacts to endangered species.  

Habitat Assessment

The first step is to perform a habitat assessment to evaluate potential impacts to endangered species. This assessment determines whether habitat for federally listed endangered species is present and may be impacted by the project. If no endangered species are present, no further action is required.

Biological Assessment

If the habitat assessment reveals endangered species are present on the project and could be impacted, a Biological Assessment is required, which could require more detailed analysis and surveys. Key considerations are described below.

• Most surveys can only be performed during certain seasons
• Avoidance and minimization commitments often focus on modifying construction activities and construction timing.
• Commitments allow KYTC to obtain a Not Likely to Adversely Affect finding from USFWS.
• A Not Likely to Adversely Affect finding allows KYTC to avoid taking an endangered species.
• Avoidance and minimization measures to protect endangered species include:
  • Seasonal construction restrictions
  • Blasting restrictions
  • Tree cutting restrictions
  • Habitat restoration
  • Deviation from avoidance and minimization measures that have been agreed to requires re-coordination with USFWS
• Project details to sufficiently determine impacts may be needed such as:
  • Pier location
  • Blasting details
  • Construction scheduling
  • Disturbed limits
  • Direct, indirect, and cumulative impacts
  • Utility relocations

Biological Opinion

If a project will result in take of a species, USFWS prepares a Biological Opinion (BO) that states the project will not put the species in jeopardy of extinction and which estimates the number of individuals to be taken. Other key points relevant to the BO include: 

• USFWS gives permission for take via an Incidental take permit.
• While uncommon, typically several KYTC projects each year require a BO.
• Once issued, deviations from project conditions covered by the BO require reopening the BO and additional coordination with USFWS.
• BO response time is 135 days from submittal to USFWS.

5.4 Hazardous Materials

KYTC conducts assessments to determine if underground storage tanks (UST) and hazardous materials (HAZMAT) may be encountered during project construction and to develop a plan to address potential impacts. Key elements of this process follow:

• The investigation is iterative. Early in the process, the focus is on records research and field reconnaissance, followed by more detailed studies as necessary to define areas of concern. Regulated materials that cannot be avoided are remediated.
• An environmental site assessment (ESA) overview is completed to determine the potential for USTs and/or HAZMAT.
• Phase I ESA is conducted if there are known USTs and/or HAZMAT.
• Phase II ESA is conducted if there is a likelihood that USTs and/or HAZMAT will be encountered by the project.
• When a Phase II ESA confirms that contaminants are within the proposed project ROW, Phase III environmental corrective action (ECA) may be required to remediate or remove recognized environmental conditions. Phase III ECAs are conducted after ROW acquisition.

Projects that impact streams and/or wetlands may require one or more of the following permits:

• Section 404 permits from the United States Army Corps of Engineers (USACE)
  • Usually a linear transportation crossings/Nationwide Permit 14
• Section 401 Water Quality Certifications from the Kentucky Division of Water
• Kentucky Pollutant Discharge Elimination System (KPDES) permits from the Kentucky Division of Water

6.1 United States Army Corps (USACE) Permits

If a project will impact Waters of the United States (WOTUS), KYTC must obtain a Section 404 permit from USACE before any impact occurs. A utility relocation project may involve obtaining one of the following Section 404 permits:

• Nationwide permits — Nationwide permits are general permits for categories of projects presumed to have minimal impacts on WOTUS.
• Nationwide 12 — Covers utility projects that do not exceed the maximum allowable impact thresholds of a Section 404 nationwide permit.
• Nationwide 14 — Covers linear transportation projects and is the primary permit for roadway projects that do not exceed the linear or acreage maximum allowable impact thresholds of a Section 404 nationwide permit.
• Letter of Permission — Authorizes temporary and permanent fills associated with transportation projects when impacts exceed thresholds for nationwide permits. It is a type of individual permit that streamlines authorization when impacts meet specific criteria.
• Individual Corps 404 permits — Required on projects that exceed maximum allowable impact thresholds required for a nationwide permit or which do not qualify for a Letter of Permission.
• 408 Permit — A special USACE permit for projects that impact USACE infrastructure.

Most KYTC construction activities are covered under a nationwide permit. Key features of nationwide permits are described below.

• Nationwide permits are specific to the activity and pre-authorized to address certain levels of impact (no formal permit submittal required).
• KYTC must submit a Pre-Construction Notification to USACE if a project exceeds certain thresholds or does not meet the general conditions specified in a nationwide permit.
• Nationwide permits are used when impacts exceed the below notification thresholds but are less than thresholds associated with an individual permit, including a Letter of Permission.
• Most utility impacts will qualify for a nationwide permit.
• 50+ general conditions apply to the nationwide permit certification including archeology, cultural-historic, and endangered species clearance.

KYTC only permits activities that fall within the project footprint established during the design process. Any impacts outside of this footprint require a modification to the original permit or a new permit.

USACE permits are generally obtained in the later stages of project development because roadway, drainage, and other impacts must be well-defined to apply for a permit.

6.2 Water Quality Certifications

Section 401 Water Quality Certifications (WQC) from the Kentucky Division of Water are required when a project impacts waters of the Commonwealth. An Individual WQC is required if a project impacts Special Use/Outstanding State Resource Waters. 

• A WQC is subject to Public Notice and comment.
• If a project is modified, a new WQC may be required.
• Obtaining a WQC takes a minimum of three months.

6.3 KYR10 Construction Permit

The Cabinet must obtain a KPDES KYR10 permit from the Kentucky Division of Water for projects that create a ground disturbance of one (1) acre or more. The KPDES General Permit for Stormwater Discharges Associated with Construction Activities (KYR10) authorizes discharge of pollutants in stormwater discharges associated with both small and large construction activities.

The KPDES permit is based on cumulative impacts within a common plan of development. A common plan of development is a situation where multiple construction activities are located within the same area or development. Utilities may or may not be considered part of a highway project. As with other permits, utility construction often occurs outside the original project footprint project and could require a separate KPDES permit.

Here are key points to remember: 

• Utility relocations can and should be covered under the KYTC project’s NEPA approval. This is viable if the alignment and construction methodology of the necessary utility work is known and factored into the KYTC project NEPA process.
• Projects can be environmentally cleared but nonetheless have outstanding issues and thus are not completely clear
• Project modifications or additional impacts may require additional clearances and permits.
• DEA does address project changes, most often due to ROW changes or construction issues.
• Additional coordination and clearances can result in delays.
• If the utility falls outside the KYTC project’s footprint or impacts socio/environmental features the KYTC project does not, then the utility may need to secure their own environmental review and approval from the various resource agencies (USFWS, SHPO, etc.).

Utility relocation work requires:

• Close coordination with KYTC archeologists, DEA, USACE permit staff, historians, HAZMAT specialists, and biologists to ensure parcels have been cleared
• Knowledge of clearance status
• Knowledge of avoidance, minimization, and mitigation commitments.
• Additional permitting if WOTUS are impacted.
• All utility relocation plans be provided to the District Environmental Coordinator.

Utilities and Rails Guidance Manual

Environmental Analysis Guidance Manual

Utility Engineering and Coordination

Subsurface Utility Engineering (SUE)

Project Management and NEPA

Biological Assessment

Erosion Control – Field Applications

Section 106 Process for Project Managers

Section 7 of the Endangered Species Act

Section 404 Permitting for Project Managers