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Environmental Approval
Contents
1. Compile Draft Environmental Assessment
2. Initiate Draft 4(f) Statement
3. Environmental Assessment Approval
4. Submittal, Review, Revisions, & Approval
7. Preparation of Draft Finding of No Significant Impact (FONSI) Document
8. Environmental Justice Resolution
9. Final Section 4(f) Statement
10 Section 106 Memorandum of Agreement (MOA)
Project Flowchart for this Article
As alternatives are eliminated and selection of a preferred alternative grows imminent, the draft EA is compiled for submission, review, revisions, and approval. The EA must:
• Describe the proposed action,
• Detail the purpose and need for the proposed action,
• Describe alternatives,
• Evaluate the impacts associated with each alternative,
• Discuss proposed mitigation,
• List the agencies and persons consulted during early coordination, and
• Discuss the preferred alternative if the PDT has identified one.
Milestone with Federal Approval Required
The EA compiles all information gathered for the project, including completed base studies. The EA should:
• Describe the proposed action in sufficient detail,
• Discuss the purpose and need for the proposed action,
• Review all alternatives,
• Catalogue environmental, social, and economic impacts,
• Record the secondary and cumulative effects of the proposed action for each alternative,
• Document proposed mitigation measures, and
• List the persons and agencies consulted during the early coordination process.
Once the draft EA is completed and approved by FHWA, the opportunity for a public hearing may be
advertised.
The environmental SMEs responsible for preparing the EA generate the appropriate number of copies of the draft EA and submit them to the Division of Environmental Analysis and DEC for review. The Environmental Project Manager (EPM) establishes the schedule for document review and comment. The DEC coordinates document review with the PM and other appropriate district personnel and forwards comments from the review to the EPM for inclusion with comments from the Division of Environmental Analysis. The Division of Environmental Analysis manages the overall review of the draft EA; it also prepares and compiles comments, questions, or required modifications.
Following review, the draft EA is revised to address comments or resolve outstanding issues. Copies are then prepared and submitted to the Division of Environmental Analysis and DEC for final review and acceptance. The number of document copies should comply with the NEPA document distribution table (see the Environmental Analysis Guidance Manual [EA-9026]) or the decision made during project scoping. The EPM establishes the schedule for document review and comment following the same process used for draft EA review.
Once KYTC accepts the EA, the Division of Environmental Analysis submits a copy to FHWA for approval. This is the first opportunity FHWA officials will have to review and comment on the EA. FHWA notifies the Division of Environmental Analysis of comments or issues identified during its review. The EPM coordinates the revision process to ensure outstanding concerns are addressed and resolved to the satisfaction of FHWA and KYTC.
Once the review phase is complete, the final EA is signed and approved by the Director of the Division of Environmental Analysis and the Administrator of the Kentucky Division of FHWA.
On Federal-aid projects whose environmental document is an Environmental Assessment/ Finding of No Significant Impact (EA/FONSI) or an Environmental Impact Statement (EIS), KYTC must: 1) give the public an opportunity to request a public hearing, or 2) hold a corridor and/or design public hearing. Federal regulations mandate this course of action. For instance, if KYTC recently held a public meeting for an EIS level project and prepared an adequately detailed public hearing summary, the most appropriate course of action may be to advertise an Opportunity to Request a Public Hearing because the likelihood of collecting additional substantive information is small. However, if the advertisement generates sufficient interest, the Cabinet must hold another public hearing.
The primary objectives of a public hearing are to circulate detailed project information for public review and comment and to discuss how issues and concerns voiced during earlier meetings have been resolved, especially those pertaining to environmental commitments. Public hearings afford interested citizens, stakeholders, and public officials the opportunity to participate in the transportation decision-making process. For more information on public hearings, see the Highway Design Manual (HD-603).
Red Flag
A public hearing should be held no later than 60 days after the District is advised that an EA has been approved.
Public hearings are more regulatory in nature than public meetings. KRS 13B and KRS 174.100 describe procedures for holding a public hearing or offering the opportunity to request a public hearing on state-aid projects. On Federal-aid projects, procedures must be consistent with the public involvement/public hearing program requirements outlined in 23 United States Code 128 and 40 CFR 1500-1508 and 23 CFR Part 771. Guidance on public hearing format and requirements may be found in the Highway Design Manual (HD-603).
A hearing record is used to document public hearings. Any public hearing record is considered an open records document and therefore must contain the material provided for public review and comment as well as the responses to that material. Public responses may include:
• Written statements or petitions offered during the public hearing or during the identified comment period following the hearing, and
• Oral statements made during the public hearing through a court reporter or recording device.
After the hearing record has been prepared, the original remains in the District Office. The Public Involvement Coordinator receives copies of the hearing record and distributes it, along with a summary/recommendation, to the proper agencies. Federal regulations specify that KYTC must submit a copy of the hearing, along with the certification and record transcript, to FHWA. Additionally, copies are provided to: 1. KYTC Division of Environmental Analysis (hearing record and summary/recommendation), 2. KYTC Division of Planning (summary/recommendation only), and 3. KYTC Division of Right of Way and Utilities (summary/recommendation only).
The FONSI summarizes environmental decision making for the project location. Pursuant to 40 CFR Part 1508.13, the FONSI reviews why project activities will have no significant impact on the human environment, therefore precluding the need for an EIS. The FONSI focuses on the selected alternative and provides responses to issues raised during the public hearing. The EA is attached to the FONSI, and it provides supporting documentation for the decisions made in alternative selection. The draft FONSI includes the items discussed below.
A project review ensures actions resulting from transportation decisions will not have disproportionately severe and adverse effects on minority and low-income populations. If such impacts are unavoidable, proposed measures to minimize or mitigate them are summarized, including a discussion of how the affected populations participated in the decision-making process.
For CE-level projects, KYTC’s programmatic agreements address Section 106 concerns. In the case of larger projects (e.g., a FONSI project), a full baseline survey would likely be conducted. The MOA should include measures to resolve adverse effects – specifically the avoidance, minimization, and mitigation of those effects.
Red Flag
Environmental Justice Analysis (EJA) might correspond with the Socioeconomic Impact Assessment, but the EJA requirements are separate and outlined by an Executive Order.
For historic bridges, KYTC and FHWA document the process using the Programmatic 4(f) for Historic Bridges Checklist. The FONSI appendix contains the final checklist as well as the MOA addressing impacts to the bridge.
If archaeological investigation is incomplete when the draft FONSI is prepared, an MOA may be necessary. The MOA documents KYTC’s commitment to perform the work later in the project life.
During the FONSI process — which encompasses submittal, review, revisions, and approval — the EPM coordinates revisions to attain final approval from FHWA and KYTC. Review status is tracked in the Environmental Analysis Tracking System (EATS) database, which is accessible to the DEC. FHWA signature approval of the FONSI constitutes location approval of the selected alternative.
To inform the public of the decision, the PM publishes a Notice of Availability (NOA) in media outlets they believe are best suited to reach a wide audience (e.g., newspaper, internet, other innovative venues). The NOA announces that project documentation is ready for review and comment. Projects requiring an EIS or a FONSI are advertised in local or regional newspapers. For projects of statewide significance, the CDE, regulatory, or management personnel may ask to advertise a public hearing in a newspaper of statewide circulation.
Milestone with Federal Approval Required
A critical step in the Federal‐aid process is obtaining environmental clearance (e.g., the completion and federal approval of an environmental document for the proposed project). An environmental document records the project decision-making process and the evaluation and selection of project alternatives, including consideration of engineering, environmental, and economic factors. Normally, development and approval of the environmental document occur in Phase 1. The NEPA documents and alternatives analysis should clearly indicate why and how the range of project alternatives was developed, including the public and agency input used. In addition, alternatives analysis should explain the rationale for eliminating alternatives from consideration. This analysis must describe the criteria used to eliminate alternatives, when during the process alternatives were removed, who participated in establishing criteria for evaluating alternatives, and measures for assessing the effectiveness of alternatives.
Pursuant to NEPA, federal regulations identify three forms of NEPA documentation: 1) CE, 2) EA and FONSI, and 3) Draft EIS and Final EIS and ROD. The form of documentation is chosen based on a project’s scope, scale of impacts, complexity, and potential for controversy.
CEs are processed as one of four types or levels. The appropriate type or level depends on project context and the magnitude of impacts. Projects with little to no impact are processed using either a CE for Minor Projects or CE Level 1. Projects with greater environmental impacts may be processed using a CE Level 2 or CE Level 3. The Environmental Analysis Guidance Manual (EA-404) describes the criteria established for different CE levels.
FHWA approval is not required for state‐funded projects. For these projects, environmental resources are typically documented in an EO. Depending on its context, state-funded projects may require an approval or permit from another federal agency that is subject to NEPA requirements. Examples include USACE permits, USCG permits, and easements on the purchase of federally owned property or from within federally designated lands (e.g., Daniel Boone National Forest). These agencies prepare their own NEPA document using project information supplied by KYTC.
See the Environmental Analysis Guidance Manual (EA-400) for guidance on the preparation of environmental documents. PMs may wish to also consult supporting information in the Highway Design Guidance Manual (HD-400).
The time needed to create different environmental documents (and the associated work required for their preparation) varies greatly. Once finalized and accepted, approvals of these documents are valid for a specified time frame. If an approval expires, a reevaluation is needed. The purpose of the reevaluation is to ensure the decision reflects the current project and verify the effects and impacts previously identified have not significantly changed. Irrespective of any document’s expiration date, reevaluation may be warranted if there are changes in the project scope, regulations, or conditions within the project area. Additionally, before the advancement of a Federal‐aid project to any major phase (ROW, utilities, construction), FHWA may require reevaluation of the approved NEPA document.
The following table provides general guidance on when each document type is appropriate, who prepares it, time required for completion, and how long the document is valid before a written reevaluation is required. The table indicates the reference chapter in the Environmental Analysis Guidance Manual where guidance for these environmental documents is found.
| Document Type | When to Use | Who Prepares | Time to Complete | Valid for |
|---|---|---|---|---|
| EO (EA-403) | Planning phase or state-funded projects | KYTC Planning or Environmental Staff or Consultant | 2 - 12 months | N/A |
| CE (EA-404) | When impacts are not significant (See CE Manual) | KYTC District or CO Environmental Staff or Consultant | Varies. See below | 2 years |
• CEMP development may require a few days or two to three months.
• CE Level 1 documentation typically requires 2-6 months.
• CE Level 2 or 3 documentation typically requires 6-24 months.
| EA (EA-405) | When unsure whether impacts will be significant or not | Typically Consultant | 6-18 months | Until final environmental document is completed |
| FONSI (EA-406) | When an EA finding results in no significant impacts | Typically Consultant | 6-12 months after EA | 2 years |
| EIS/FEIS (EA-407 EA-408) | When impacts are anticipated to be significant | Typically Consultant | 24-36 months | Until ROD is signed |
| ROD (EA-409) | When impacts are significant | Typically Consultant | 6-12 months after FEIS | 3 years |
| Re-evaluation (EA-410) | Expired document, plan changes, or changes in regulation | Manager of Original Document (EPM or DEC) | 1 week - several months | Same as original document |
Red Flag
Project changes which occur after an environmental document is approved must be clearly communicated to all project team members so that project environmental documents are updated properly. This includes minor revisions to the project footprint resulting from detailed design at intersections, definition of approaches, changes in slopes, or other refinements that minimally expand the area impacted by a project. When substantial additional impacts are identified or the project area is significantly expanded after completion of the environmental document (e.g., the incorporation of excess excavation sites), it may be appropriate to reevaluate the environmental document and prepare a supplement or addendum, regardless of scheduled project development phases.
Red Flag
The PM is responsible for initiating a reevaluation if the approved NEPA document, or its subsequent reevaluation, will expire prior to required authorization of a major phase, or if there has been a significant change (e.g., in scope, regulation, project area) in the project since the NEPA document was approved. Reevaluation must be initiated sufficiently in advance of any scheduled major phase authorization to allow for completion of additional studies, coordination with resource agencies, and other activities. (Starting a reevaluation is especially critical as the project progresses toward construction to ensure letting is not delayed). Generally, the office which developed the original document is responsible for reevaluation. For CE on minor projects and CE Level 1 documents developed in a District Office, the DEC coordinates and/or completes the reevaluation. For other document types developed by the Division of Environmental Analysis or consultants, the Division coordinates and/or completes the reevaluation. In some cases, environmental consultants may play a role in preparing reevaluation documentation.
All state-funded projects, regardless of federal involvement or permitting, must comply with the ESA. Regardless of funding source, other environmental factors, such as USTs, relocations, hazardous waste or cleanup sites, and noise, must be considered. For state-funded projects with federal agency involvement, a NEPA document is not typically required. However, project development must be consistent with NEPA requirements, including an analysis of alternatives, and compliance with Section 106 of the National Historic Preservation Act and the ESA.
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