application to assume fhwa responsibilities - pages related to nepa... · application to assume...
TRANSCRIPT
0 | P a g e
The Ohio Department of Transportation
Application to Assume FHWA’s NEPA Responsibilities
Pursuant to 23 U.S.C. 327 Ohio Department of Transportation
1 | P a g e
State of Ohio, Department of Transportation Application for Assumption of
Federal Highway Administration Responsibilities Pursuant to the Surface Transportation Project
Delivery Program, 23 U.S.C. 327
May 27, 2015
This is the Ohio Department of Transportation's (ODOT’s) application to assume the Federal Highway
Administration's (FHWA) responsibilities under an Assignment Program authorized by the Surface
Transportation Project Delivery Program, 23 United States Code (U.S.C.) 327. For questions regarding
this application, please contact: ODOT’s Administrator of Office of Environmental Services, Tim Hill
at (614) 644-0377.
2 | P a g e
Introduction
The Ohio Department of Transportation (ODOT) appreciates the opportunity afforded by Congress to allow states
to assume the responsibilities of the Federal Highway Administration (FHWA) for the National Environmental
Policy Act (NEPA) and related laws through applying to participate in the Surface Transportation Project Delivery
Assignment Program (NEPA Assignment Program) pursuant to 23 U.S.C. 327. ODOT hereby submits the
enclosed application. ODOT is applying to assume all of FHWA’s responsibilities under NEPA for state highway
system (SHS) and local government projects off the SHS in Ohio. ODOT is also applying to assume all of FHWA’s
responsibilities for environmental review, resource agency consultation, and other environmental regulatory
compliance-related actions pertaining to the review or approval of projects. In submitting its application, ODOT
express their strong commitment to successfully implement the responsibilities requested that are assigned to ODOT
under the NEPA Assignment Program. This application follows the requirements established in the Final Rule for
the Assignment Program application issued in the Federal Register (Vol. 72, No. 28) on February 12, 2007 and as
amended in the Federal Register (vol. 79, No. 179) on September 16, 2014.
NEPA directs federal agencies to consider the environmental effects of its actions, using a systematic,
interdisciplinary approach. In the State of Ohio, as the agency responsible for providing safe and reliable
transportation solutions for Ohio, ODOT is also responsible for environmental compliance. ODOT integrates
environmental considerations into department activities to achieve compliance with applicable laws, regulations,
and standards. ODOT is focused on delivering safe, efficient transportation projects and making sound decisions
based on a balanced consideration of transportation needs and of the social, economic, and environmental impacts
of proposed transportation improvements. ODOT’s policy of balanced decision-making is similar to the philosophy
underlying NEPA and FHWA's NEPA policy expressed in 23 Code of Federal Regulations (CFR) 771.105.
As required by NEPA, FHWA 's NEPA regulations at 23 CFR 771, and in compliance with ODOT policies and
procedures, ODOT examines and discloses the environmental effects of its proposed activities; identifies the ways
that environmental impacts can be avoided or minimized; prevents significant, avoidable environmental impacts by
modifying its projects and/or implementing mitigation when appropriate; and publicly discloses the impacts of its
projects and its project decisions, emphasizing balanced decision-making. As part of this process, ODOT undertakes
timely and consistent outreach with the public, local jurisdictions, regional transportation planning agencies,
resource and regulatory agencies, and Tribal Governments. ODOT will continue to work cooperatively with its
agency partners, communities, and the general public under the NEPA Assignment Program.
Based on the capabilities of ODOT environmental staff, FHWA has previously entrusted to ODOT certain aspects
of its consultation responsibilities with its federal resource agency partners. Under the provisions of a programmatic
agreement, FHWA has authorized ODOT to act on its behalf to perform many of the requirements of the National
Historic Preservation Act. ODOT has also been entrusted responsibilities for informal consultation under the
Endangered Species Act (ESA).
ODOT has worked with FHWA for over 40 years to meet NEPA requirements and to work cooperatively with its
federal and state agency partners and with Tribal Governments; it has developed extensive procedures and tools to
support this work. Because of ODOT’s experience, expertise, and current level of involvement in consultations, its
existing resources will be adequate to assume FHWA’s responsibilities for resolving issues with external agencies.
ODOT’s extensive staff capabilities and well-developed environmental compliance program, together with the steps
that ODOT has taken and will continue to take to strengthen its program under the NEPA Assignment Program, are
summarized in this application.
Under the NEPA Assignment Program, ODOT will comply with all applicable federal environmental laws and
FHWA environmental regulations, policies and formal guidance. The program will not change or weaken federal
3 | P a g e
environmental protection standards. Under NEPA, FHWA regulation, and state statute and rule, ODOT currently
makes decisions on its transportation projects that protect the environment and will apply these same rigorous
environmental protection standards to projects under the NEPA Assignment Program. To ensure the success of the
NEPA Assignment Program, ODOT will regularly conduct formal self-assessments to gauge the effectiveness of its
environmental procedures under the program and to identify the need for any program corrections. In addition,
FHWA will audit ODOT twice a year for the first two years of the NEPA Assignment Program and once a year
thereafter to ensure that ODOT is meeting NEPA and other federal environmental requirements consistent with
FHWA's goals of environmental stewardship and streamlining.
The NEPA Assignment Program will streamline Ohio’s environmental review process and project delivery time.
Once FHWA and ODOT execute an MOU that assigns NEPA responsibilities, ODOT will be solely responsible and
liable for NEPA decisions on assigned highway and local roadway projects in the state without any involvement by
FHWA. This application contains the following components, as required by 23 CFR 773:
§773.107: Pre-application requirements
§773.107 (a): Coordination meeting;
§773.107 (b)(1),(2): Public comment;
§773.107 (c): Sovereign immunity waiver;
§773.107 (d): Comparable State laws;
§773.109: Application requirements
§773.109 (a)(l): Classes of highway projects for which ODOT requests NEPA responsibility;
§773.109 (a)(2): Federal environmental laws other than NEPA for which ODOT request
responsibility;
§773.109 (a)(3)(i): Existing organization and procedures;
§773.109 (a)(3)(ii): Changes to be made for assumption of responsibilities;
§773.109 (a)(3)(iii): Legal sufficiency;
§773.109 (a)(3)(iv): Prior concurrence;
§773.109 (a)(3)(v): Project delivery methods;
§773.109 (a)(4)(i): Additional Staff and Training Required;
§773.109 (a)(4)(ii): Changes to the organizational structure;
§773.109 (a)(4)(iii): Use of outside consultants for the Assignment Program;
§773.109 (a)(5): Financial resources under the Assignment Program;
4 | P a g e
§773.109 (a)(6): Certification for consent to exclusive federal court jurisdiction and waiver of
immunity;
§773.109 (a)(7): Certification that the State of Ohio's Public Records Act is comparable to the
Federal Freedom of Information Act;
§773.109 (a)(8): Public comments received on the Assignment Program application;
§773.109 (a)(9): Point of contact;
§773.109 (a)(10): Director’s signature.
This application also contains the following appendices:
A. Projects for which ODOT does not request NEPA responsibility
B. Federal Environmental Laws other than NEPA for which ODOT requests responsibility
C. Certifications for Consent to Exclusive Federal Court Jurisdiction and Waiver of Immunity and the
State of Ohio Public Records Act is Comparable to the Federal Freedom of Information Act
D. Copies of Comments Received on the Assignment Program Application and Responses Provided to
the Commenters.
E. Programmatic Categorical Exclusion Agreement between FHWA and ODOT dated February 13,
2015.
§773.107: Pre-application requirements As required by rule (§773.107 (a): Coordination meeting), on 11/17/14 and 11/18/14, ODOT met with FHWA (OH
Division and Headquarters) to participate in a pre-application coordination meeting. In addition, on 12/1/14, ODOT
held an addition pre-application coordination meeting with FHWA (OH Division and Headquarters) and state and
federal resource and regulatory agencies that represent Ohio.
Per §773.107 (b)(1),(2):Public comment, ODOT’s draft application was publicly noticed during the first week in
April, 2015 for a 30-day comment period. Comments are due by the close of business on May 15, 2015. A notice of
the draft application's availability was published in the paper with the largest circulation in the following cities:
Columbus, Cincinnati, Cleveland, Dayton and Toledo. ODOT also sent notice of the application by email/letter
with request for comment to Federal and State resource agencies and Native American tribes. Lastly, ODOT also
sent notices to various associations and other group and posted the availability of the application and how to provide
comments on ODOT’s WEB site. Appendix D is reserved to include all comments received and the responses that
ODOT provides to each of the commenters as a result of making this application available. Summaries of all
comments received and of changes made to the application in response to these comments are provided in this
appendix as well are details on the public noticing process.
Per §773.107 (c): Sovereign immunity waiver and §773.107 (d): Comparable State laws, Appendix C is reserved
for Ohio’s Waiver of Sovereign Immunity and Ohio’s determination that the State of Ohio' Public Records Act is
Comparable to the Federal Freedom of Information Act.
5 | P a g e
§773.109 (a)(1): Classes of Highway Projects for Which ODOT is
Requesting NEPA Responsibility
ODOT is requesting to assume FHWA’s responsibilities under NEPA for the following classes of highway projects
upon execution of the NEPA Assignment Program MOU with FHWA. In general, this includes all highway and
roadway projects in Ohio whose source of federal funding comes from FHWA or require FHWA approvals; these
projects may include funding from other federal sources as well. For these projects, ODOT requests to assume only
FHWA’s NEPA responsibilities; the request does not include assuming the NEPA responsibilities of other federal
agencies. These projects may include funding from other federal sources as well. For these projects, ODOT
requests to assume only FHWA’s NEPA responsibilities; the request does not include assuming the NEPA
responsibilities of other federal agencies.
1. All Class 1, or Environmental Impact Statement (EIS) projects, both on and off the SHS that are funded
by FHWA or require FHWA approvals. Currently, there are no projects that have a Draft Environmental
Impact Statement (DEIS) pending in Ohio.
2. All Class II, or Categorically Excluded, projects, both on and off the SHS that are funded by FHWA or
require FHWA approvals.
3. All Class III, or environmental assessment (EA) projects, both on and off the SHS that are funded by
FHWA or require FHWA approvals.
Lastly, ODOT would establish appropriate relationships with other Operating Administration(s) involved in a
multimodal project, including cooperating agency, participating agency, and lead or co-lead agency relationships
under NEPA. In addition, ODOT may use or adopt other Federal agencies’ NEPA analyses consistent with 40 CFR
parts 1500-1508 and USDOT and FHWA regulations, policies, and guidance.
Projects meeting the following criteria will be excluded from the assignment:
Federal Lands Highway projects, unless designed and constructed by ODOT.
Projects that cross state or international boundaries. ODOT has four of these projects, as listed below:
HAM-50/State Line Road Improvements, PID 93507- Addition of left/right turn lanes and
widening. Project is most likely CE- INDOT is the project sponsor.
HAM-IR 71/IR 75-0.00/0.22, PID 75119- Brent Spence Bridge. Approved EA, but being
supplemented due to the potential addition of tolls.
SCI-US23-0.00, PID 98150- Bridge deck overlay/resurfacing. Project will be a low level CE.
JEF-Wellsburg Bridge, PID 79353- Project is a new bridge over Ohio River to WV. It has an
approved EA, but a reevaluation is required due to changes in the construction limits. WVDOT
is the project sponsor.
ODOT’s assumption of these responsibilities program-wide will provide for the highest degree of consistency and
efficiency in document review and agency coordination. It will also provide the greatest opportunity for streamlining
benefits.
6 | P a g e
§773.109 (a)(2): Federal Environmental Laws Other than NEPA for
Which ODOT is Requesting Responsibility
ODOT requests to assume all of FHWA's responsibilities for environmental review, interagency consultation, and
other regulatory compliance-related actions pertaining to the review or approval of projects for which ODOT is
requesting assumption of responsibilities under NEPA. ODOT requests to assume these responsibilities under all
applicable federal environmental laws and Executive Orders including, but not limited to; federal laws, regulations,
and Executive Orders listed in Appendix A of 23 CFR 773 (also listed in Appendix B of the application). ODOT
requests immediate assumption of these responsibilities upon execution of the Program MOU with FHWA. These
responsibilities are not planned to be phased in. ODOT’s approach and practice in working with federal resource
agencies and their regulations are described in further detail within this application.
§773.109 (a)(3)(i): Existing Organization and Procedures
Organization
ODOT is the legally authorized transportation department for the State of Ohio, with responsibility for roadways and
public transportation projects in Ohio. ODOT is overseen by the Director of the Ohio Department of Transportation
who is appointed by the Governor with the advice and consent of the Ohio Senate. The Ohio Department of
Transportation, pursuant to Ohio Revised Code Section 5501.03, is well equipped and empowered to discharge the
duties required by 23 U.S.C. 302 and 23 CFR 1.3.
ODOT is comprised of 12 Districts and a Central Office divided into divisions and offices (see organization chart in
Figure I). The ODOT Districts report to a Central Office Assistant Director. Most ODOT divisions and offices report
to three executive-level organizational units (Assistant Directors). The Office of Chief Legal reports to the Chief of
Staff (Assistant Director).
7 | P a g e
Figure 1. ODOT Organization Chart
The Districts design and oversee development of all district transportation projects and are responsible for
maintenance and operation of the state highway network within their district boundaries. The District Environmental
Coordinator (DEC) and staff are responsible for environmental compliance activities for all projects in the district.
In general, the district environmental staff conduct initial environmental surveys, prepare or oversee preparation of
environmental documents, perform local interagency coordination, and implement public involvement as well as
other activities related to NEPA compliance. In addition to their general environmental experience, many district
environmental personnel have education and training in specialty areas such as biology, geology, socio-economics,
and water quality. Some district environmental staff are subject matter experts (SMEs) in air quality, hazardous
materials, noise, biology, and wetland sciences.
The ODOT Office of Environmental Services (OES), under the Planning Division in Central Office, is responsible
for developing and implementing the environmental program for the department as a whole. In this capacity OES
develops, administers, and distributes ODOT’s environmental policies, procedures, manuals, and guidance. OES
also provides training and technical support to the districts. In addition, OES also provides project specific technical
expertise, agency coordination and project management oversight/assistance. OES ensures environmental
compliance for the entire ODOT program.
The OES will engage a full time attorney who will provide legal expertise related to Administrative Law including
NEPA compliance for FEISs, Section 4(f) legal sufficiency reviews, and broader environmental review processes.
This ODOT-OES attorney will be supported by ODOT’s Office of Chief Legal Counsel, but will be solely devoted
to the NEPA assignment program. The attorney’s duties will include assisting the Ohio Attorney General’s Office in
8 | P a g e
litigation, performing legal sufficiency reviews of FEISs and 4(f) evaluations, overseeing ODOT outside
environmental counsel’s work, and providing legal review of memorandum of understanding, programmatic
agreements, and administrative records. The ODOT-OES attorney also oversees and ensures final compliance on
any legal matters, even if outside legal consultants are used for support work.
Current ODOT Office of Environmental Services Organization
OES provides expertise to the department by integrating environmental considerations into ODOT activities to
achieve environmental compliance. OES develops environmental policies and procedures, including those for
preparing and processing environmental documents; conducts specific environmental field studies; assists in the
management of environmental NEPA actions/projects; conducts all agency coordination efforts, manages
ODOT’s environmental systems; and works on a variety of environmental streamlining initiatives. OES provides
policy, procedure, training, guidance, and technical studies/assistance to other organizational units of the
department. Subjects of technical support include air quality, archeology, biology, hazardous materials, history
and architecture, indirect and cumulative impacts, NEPA, noise, socio-economics, Section 4(f) determinations,
and water quality. OES also manages environmental programs and monitors changing laws and regulations.
OES works with the districts to ensure environmental compliance and appropriate consideration of
environmental issues on all ODOT projects. OES is the lead for all consultation and coordination with state and
federal resource agencies for projects as well as for the ODOT environmental program as a whole. For projects,
OES reviews all high level CEs, EAs and EISs as well as all Section 4(f) evaluations, and for federal aid highway
projects recommends their approval to FHWA. Districts are responsible for reviewing and certifying lower level
CEs. OES also develops environmental compliance quality assurance standards and defines quality control
requirements for environmental document approval. Currently, OES has a staff of approximately 29 full time
employees (FTEs), including environmental managers, specialists and a variety of subject matter experts,
including biologists, geologists, water quality experts, hazardous materials experts, air and noise experts,
archeologists, historians, architectural historians. Almost all cultural resource management staff meet the
Secretary of Interior's standards as qualified professionals. In addition to its responsibilities for review and
approval of ODOT environmental documents, OES reviews and recommends approval of higher level CEs, EAs
and EISs for local government projects.
In addition, per ODOT’s 2005 Tribal consultation protocol ODOT coordinates with Indian tribes as well, however, it
is FHWA’s responsibility to initiate and carry out consultation with federally recognized Indian Tribes to the
greatest extent permitted by law when they may be impacted by potential Federal-aid highway projects. This
responsibility may not be officially delegated to the State DOT’s; however FHWA may rely on State DOTs to carry
out administrative, project specific tasks on behalf of FHWA. This government to government responsibility will
remain with FHWA, even under the NEPA Assignment program. FHWA retains responsibility for government to
government consultation with federally recognized Indian tribes, including participating in any conflict resolution
that that may come about through government to government consultation. For such projects where FHWA is
involved in government to government consultation, ODOT however, remains responsible and liable for compliance
with all Federal requirements and related laws.
As shown in the office organizational chart (Figure 2), OES includes two primary sections: Environmental
Policy/Cultural Resource and Ecological/Permits/ESA Section. Within their respective disciplines, SMEs provide
technical expertise, as requested, throughout the project development process. When requested by a district
environmental staff, the project manager (PM) or an OES project coordinator/SMEs prepare documentation for
resource agency consultation, such as biological assessments under Section 7 of the Endangered Species Act and
determinations of eligibility and effect under Section 106 of the National Historic Preservation Act, conduct
technical studies, and review technical studies and reports prepared in support of projects.
9 | P a g e
Figure 2. Office of Environmental Services Organization Chart
Within OES, special project coordinators and major project coordinators make up the heart of the project
management team within OES that review and manage the overall NEPA documents and projects. The OES special
project coordinators and major project coordinators (herein referred to as the OES Project Coordinators) assists
districts with the development, review, and approval of environmental documents for projects either at the request of
the District’s or those that are highly complex, high profile, or otherwise deemed necessary by ODOT. This team
includes staff who coordinate with the district environmental staff for all EA or EIS projects. The team provides
support and NEPA expertise to facilitate the efficient development, review and approval of these documents and to
effectively meet the requirements of NEPA and other FHWA and federal and state requirements. This team is
charged with confirming that EISs are NEPA-compliant and that project files contain a complete administrative
record. This team also coordinates with the ODOT-OES attorney for review of certain NEPA documents. Over the
past 15 years, the OES team has completed 12 EISs and 14 EAs as well as being very active on OES manual updates
and process improvements.
OES Project Coordinators are responsible for review of complex CEs, EAs and EIS documents as well as overall
support for districts. They are assigned specific Districts to oversee and to ensure projects that come out of those
Districts are complete, accurate, appropriately support the decision-making process, and that public involvement and
interagency coordination required for the NEPA decision are complete. This team ensures that documents are
administratively complete and NEPA compliant. When needed, they coordinate with the ODOT-OES attorney for
legal review. This section also distributes environmental documents and technical reports to the technical experts, as
appropriate, for review and comment; compiles comments from the various technical sections; transmits compiled
comments to document authors for revision; and ensures that comments are addressed in the final NEPA document.
10 | P a g e
The Ohio Rail Development Commission provides environmental review of rail projects, and OES provides
oversight and compliance reviews and assurance to their program as well for the projects that receive federal funds
form FHWA. The Ohio Rail Development Commission routinely processes rail-related projects that receive
funding through FHWA. These projects are typically minor projects with little potential for environmental impacts
such as those that close at-grade crossings and involve installation of safety equipment. In order to ensure
compliance with the Programmatic CE Agreement, ORDC maintains a qualified Environmental Coordinator who is
authorized to approve CEs for projects that receive FHWA funding. The Environmental Coordinator has received
environmental training and works closely with OES staff on these projects. ODOT-OES is not involved in projects
that do not receive funding through FHWA.
OES’ SME’s are highly knowledgeable and trained in their specialties. OES’ average employee has over 15-20
years’ experience in NEPA and environmental management and over 40% of its staff have advanced degrees. All of
OES’ employees go through detailed pre-qualification training and attend continuous environmental training as well.
OES develops general ODOT environmental policy, procedures, training, and guidance based on federal and state
statutes and regulations. Each of the sections in OES is responsible for developing policy, procedures, training, and
guidance relating to technical issues in coordination with the District Offices. Once policies, procedures, and
guidance are developed, OES distributes this information throughout ODOT and conducts training and
implementation. OES also reviews and comments, as appropriate, on proposed state and federal legislation and
regulation, and monitors trends and changes in federal and state policy and guidance. This also includes staff that
performs quality assurance reviews for categorically excluded projects. Quality assurance reviews will be extended
to environmental documents under the Assignment Program (see QA/QC section below).
In addition to in-house staff, OES contracts with a variety of consultants on environmental issues, from cultural
resources to hazardous materials. Consultants are used for project-specific environmental surveys, technical studies,
reviews, and environmental document preparation/reviews. Some consultants are located on-site to augment OES
staff, performing support functions.
OES staff work with many divisions and offices on an ongoing basis on various issues of mutual interest. The
following are notable:
OES works with the Office of Local Programs to communicate environmental policies, procedures, and
guidance to local governments, and to coordinate training for local governments.
OES works with the Division of Communications to develop rules, policies, procedures, training, and
other matters related to public participation requirements during the environmental process.
OES participates in the ODOT Project Manager Training program to train ODOT’s Project Managers on
how to integrate scheduling and resource commitments into the project development process so that
environmental considerations are automatically incorporated into overall project scheduling and
development.
OES works with the Office of Real Estate on projects involving early right of way acquisition, and when
projects require continuing coordination regarding specific resource issues during the acquisition process.
OES works with the Office of Structural Engineering to deliver historic bridge projects via maintenance
of the Historic Bridge Inventory database and joint development of the Historic Bridge Guidance.
OES works with the Office of Statewide Planning & Research on planning and environmental linkages so
that work accomplished through the planning process can be used to streamline environmental project
11 | P a g e
development. The Office of Statewide Planning & Research also maintains a critical link with
Metropolitan Planning Organizations (MPOs) to help ensure NEPA documents are consistent with MPO
long range plans prior to NEPA approvals being issued by OES or districts.
OES works with the Office of Construction Administration to ensure environmental commitments
including mitigation, are carried out in construction and that construction staff are trained on
environmental matters affecting their area.
OES works with ODOT’s Office of Chief Legal Counsel to develop state rules and provide them with
background information relevant to litigation and other legal issues. ODOT attorneys also provide legal
support on project environmental issues as requested by districts or OES. Collaboration with respect to
legal sufficiency is noted later in this application. ODOT’s Office of Chief Legal Counsel also
coordinates the Freedom of Information Act and Ohio Public Records Act requests within ODOT and
assists in the develop of Administrative Records.
OES works with ODOT’s Office of Legislative Affairs to monitor, and when necessary review and
comment on, legislation that may affect ODOT’s environmental program.
District Organization
ODOT is a decentralized organization, with 12 district offices throughout the state. District boundaries are shown
in Figure 3. Districts develop or oversee development and construction of projects, and maintain and operate the
state highway network within their district boundaries. Each district includes a District Environmental Coordinator
(DEC) who is the environmental lead responsible for reviewing and preparing environmental surveys and studies,
completing environmental documents and certification of lower level CE’s, implementing public involvement,
ensuring environmental commitment compliance, as well as other activities related to NEPA compliance.
12 | P a g e
Figure 3. ODOT District Boundaries Map
In addition to each district having a DEC, districts may have staff that is responsible for NEPA compliance and
environmental studies. Environmental specialists come from a variety of professions including archeology,
biology, geology, and socioeconomics. Both the DEC and their environmental staff often have a variety of
responsibilities including performing and reviewing technical studies such as noise analyses, cultural resource
studies, habitat assessments, wetland delineations, etc. Generally, district environmental staff are located in the
Planning and Engineering section, which implements the district planning, environmental, and design programs.
For each project, district environmental staff work with district planning staff and design engineers throughout the
project design and development process. As the engineers design the project, this coordination supports
appropriate consideration of environmental resources, avoidance and minimization of environmental impacts, and
environmental compliance. Districts also use consultant contracts, either as part of design contracts on individual
projects or by accessing OES's environmental consultant contracts, to prepare environmental documents or to
provide specific technical resource studies (such as archeological surveys/testing, wetland delineation, etc.).
Districts also collaborate with MPOs, local governments, and other political subdivisions to identify, develop, and
design transportation projects. Local government projects follow ODOT’s Office of Local Programs’ various
procedures and guidance, which outline the planning, environmental and design requirements consistent with
ODOT and FHWA process procedures. For more information on the Local program, see the below link:
http://www.dot.state.oh.us/Divisions/Planning/LocalPrograms/Pages/Local-Let-Procedures-and-Documents.aspx.
13 | P a g e
The primary point of contact for local government projects is the local ODOT district office. Each ODOT district
has a planning and programming section that studies and plans for the needs of the district's highway system.
Local governments work with ODOT district staff to identify and prioritize funding for projects. The district staff
coordinate with the District Planning staff regarding fiscal constraint, design concept and scope, and with the
Office of Program Management in central office (Columbus) regarding funding agreements.
Existing Environmental Staff
ODOT currently has a staff of 60.5 FTE’s across the state assigned to environmental functions, 31.5 FTE’s working
in the 12 districts and 29 FTE’s working in OES. In addition, there is currently one consultant FTE under contract
working in OES, 2.5 consultant FTE’s in the Districts. There are also 8 intern positions in OES and 5 at the
Districts. Statewide, ODOT environmental staff is augmented by the flexible use of environmental consultants.
With this staff, ODOT processed over 1,000 environmental documents in fiscal year (FY) 2013 and over 950 in FY
2014.
Table 1 presents the diversity of expertise that is spread throughout the state within the 12 districts and OES. Figure
4 identifies the number of OES staff by technical, engineering, management, or supervisory specialty. As can be
seen, districts and OES contain management, environmental specialists, technical experts, project managers,
environmental generalists, engineers, GIS specialists, and administrative support. The combined capability of OES
and district environmental personnel provides the expertise required to meet the responsibilities to be assumed under
this application.
Figure 4. District Staff, by Location, Responsible for Environmental Compliance and Documentation
Table 1 present the diversity of expertise that is spread throughout the state within the 12 districts and OES. Most
of ODOT’s managers and supervisors have broad backgrounds in environmental analyses and/or strong technical
En
da
ng
ere
d S
pe
cie
s
Arc
he
olo
gic
al R
eso
urc
es
His
tori
c P
rese
rva
tio
n
Se
cti
om
4(f
)
No
ise
Air
Qu
ality
Ha
za
rdo
us M
ate
ria
ls
Eco
log
ica
l/W
ate
r Q
ua
lity
Wa
terw
ay
Pe
rmit
Co
mp
lia
nce
NE
PA
Pro
ce
ss/P
DP
Pu
blic I
nv
olv
em
en
t
En
vir
on
me
nta
l Ju
sti
ce
/S
ocia
l
& E
co
no
mic
Im
pa
cts
Ind
ire
ct
& C
um
ula
tiv
e
Imp
acts
Office of Environmental Services x x x x x x x x x x x x x
District 1 - Lima x x x x x x
District 2 - Bowling Green x x x x x x x x
District 3 - Ashland x x x x x x x
District 4 - Akron x x x x x x x x
District 5 - Jacksontown x x x x x x x x
District 6 - Delaware x x x x x x x
District 7 - Sidney x x x x x x x x x x
District 8 - Lebanon x x x x x x x x
District 9 - Chillicothe x x x x x
District 10 - Marietta x x x x x x x x x
District 11 - New Philadelphia x x x x x x x
District 12 - Garfield Heights x x x x x x x x
ODOT Range of Technical Expertise
14 | P a g e
knowledge in one or more of the environmental specialty areas. The majority of OES’ and District’s environmental
staff is well experienced with having, on average, 15-20 years’ experience in NEPA and environmental actions.
Districts with relatively inexperienced environmental staff work with an experienced OES staff member until they
have developed the skills/experience needed to manage their area. All District staff coordinate well with OES’ staff.
Each District has a single point of contact assigned to them from OES staff and they may also contact addition staff
members for specific expertise where needed. Typically, the expertise is not available locally so, OES provides
technical assistance and expertise to the districts. ODOT may also choose to contract for technical expert services.
When in the best interest of the state, the districts and OES may contract for preparation of complete environmental
documents as well as additional environmental technical services. For major or extremely complex NEPA
documents, OES retains specialty consultants (public involvement specialist, etc.) and/or consultant legal staff that
specialize in environmental matters. In addition, OES will have an ODOT-OES attorney who provides day to day
counsel to OES on an as needed basis. This person will oversee and ensure final compliance on any legal matters,
even if outside legal consultants are used for support work.
Table 1. ODOT Range of Technical Expertise
0
5
10
15
20
25
30
35
OES
Dis
tric
t 1
Dis
tric
t 2
Dis
tric
t 3
Dis
tric
t 4
Dis
tric
t 5
Dis
tric
t 6
Dis
tric
t 7
Dis
tric
t 8
Dis
tric
t 9
Dis
tric
t 1
0
Dis
tric
t 1
1
Dis
tric
t 1
2
Nu
mb
er
of
Envi
ron
me
nta
l Em
plo
yee
s
Responsible Location
District Staff, by Location, Responsible for Environmental Compliance and Documentation
15 | P a g e
Lastly, ODOT has detailed manuals and guidelines for almost every product necessary for the Project Development
Process (PDP). When combined with ODOT’s extensive training and education program, those who work on ODOT
projects have a solid understanding of what is required and how to develop the necessary decision documentation for
each project.
Approach to Environmental Document Preparation
ODOT integrates environmental considerations into its activities to achieve compliance with applicable laws,
regulations, and standards. ODOT values the delivery of safe, efficient transportation projects and makes sound
decisions based on the balanced consideration of transportation needs and of social, economic, and environmental
impacts of proposed transportation improvements. ODOT complies with NEPA and all other federal environmental
requirements on its projects requiring federal funding or approval.
ODOT’s Project Development Process
ODOT has developed and implemented a Project Development Process (PDP) that includes regular communication
among technical disciplines, results in quality plans, and minimizes cost overruns during right-of-way acquisition
and project construction. The PDP is made up of five phases that projects must advance through prior to
construction (Figure 5). These phases are Planning, Preliminary Engineering, Environmental Engineering, Final
Engineering, and Construction. Depending on their size, complexity, and/or potential impact to the environment,
ODOT transportation projects are categorized as one of five paths (Path 1– 5).
Figure 5 ODOT’s Project Development Process
The PDP is a project management and transportation decision-making process that outlines project development
from concept through completion. Each PDP activity is timed to facilitate informed decision making based on an
appropriate level of project development and risk management. The PDP encourages communication among
disciplines, requires documentation of the reasoning behind project related decisions, eliminates duplicated effort
among disciplines, and provides for early identification of potential issues. Involvement of all disciplines during the
early stages of project development ensures that issues affecting project type, scope, development schedule, and
costs can be correctly evaluated and anticipated.
Selection of the appropriate project path is based on the anticipated level of project development complexity. The
project path identifies the recommended level of analysis, amount of stakeholder involvement, and activities
performed during each phase.
ODOT’s project development process is focused on identifying environmentally sensitive resources early on in the
process and thus allows for the most consideration to avoiding direct impacts to such resources. The early resource
identification also affords opportunities to minimize direct impacts.
The Five Phases of the PDP:
Planning is the first phase of the PDP. The purpose of the Planning Phase is to utilize a multi-disciplinary approach
to identify transportation problems, assess existing and future conditions, identify stakeholders, develop goals and
16 | P a g e
objectives, define the purpose and need and determine the scope, schedule and budget for the project. Planning
efforts should balance the need to move people safely and efficiently while fostering transportation projects that
preserve and enhance the natural and built environments, as well as the economic and social assets of the
neighborhoods through which they pass. The deliverables to come out of Planning is the Project Initiation Package,
Draft Purpose and Need Statement, and the project scope.
Preliminary Engineering is the second phase of the PDP. The purpose of Preliminary Engineering is to begin the
process of collecting more detailed information by conducting field investigations, other technical studies, and
engineering. This work builds upon and refines the information and analyses produced during the Planning Phase
and many tasks can be performed concurrently, as appropriate. The primary product of this phase is the
recommendation of the preferred alternative for a project. The deliverables to come out of Preliminary Engineering
are the Feasibility Study (FS) and the Alternatives Evaluation Report (AER), as necessary by the complexities of the
project, and Stage 1 Detailed Design.
Environmental Engineering is the third phase of the PDP. The purpose of Environmental Engineering is to perform
detailed environmental field studies and analysis of the preferred alternative concurrently with detailed engineering.
This work builds upon and refines the information and analyses produced during the Preliminary Engineering Phase.
The deliverables to come out of Environmental Engineering are Stage 2 Plans, completion of environmental field
studies and approval of the NEPA document.
Final Engineering/ROW is the fourth phase of the PDP. The purpose of Final Engineering/ROW is to perform the
final (Stage 3) detailed engineering design of the preferred alternative and finalize right-of-way acquisition for the
project. This work builds upon and refines the Stage 2 design work completed during the Environmental
Engineering Phase. The deliverables to come out of Final Engineering are Stage 3 Plans and all necessary
components to submit the plan package for Plan, Specification and Estimate.
Construction is the fifth phase of the PDP. The purpose of the Construction Phase is to perform the final step of the
PDP: Construct the project and perform all necessary pre- and post-construction tasks. Requirements for the
management of the contract after award can be found in the Construction Administration Manual of Procedures and
the ODOT Construction & Materials Specifications (C&MS).
The Five Project Paths of the PDP:
The PDP categorizes transportation projects as Paths 1 through 5. Selection of the appropriate project path is based
on the anticipated level of project development complexity. The project path identifies the recommended level of
analysis, amount of stakeholder involvement, and activities performed during each phase. For purposes of
classification, the relative complexity of a project should be evaluated on a statewide, rather than district-wide basis.
The PDP is designed to provide the necessary information to equitably and systematically advance the project in a
logical sequence from the beginning of planning to the end of construction. While identifying a project path is
important for initiating the scoping process, Project Managers have the flexibility to customize a project scope by
adjusting required tasks to address project needs. Thus, a project’s identified path is a starting point, but since it’s a
dynamic process, the path designation may change as project modifications are needed.
It is important to note that PDP phases represent conceptual groupings of activities. The activities from one phase do
not necessarily need to be completed before advancing with activities in the next phase. For example, because right-
of-way acquisition frequently falls on a project’s critical path, it may be necessary to begin development of
Preliminary Right-of-Way plans during development of the AER, prior to selecting the preferred alternative. Under
this scenario, elements of the Environmental Engineering Phase occur while the project is still in the Preliminary
Engineering Phase.
Path 1 Projects are defined as transportation improvements generated by the traditional maintenance and preventive
17 | P a g e
maintenance program as they relate to the development of the District Work Plan. These projects require no
additional right-of-way, have no impacts to environmental resources and thus require no environmental agency
coordination. They are typically processed as low level Categorical Exclusions (CE). These projects are usually
reviewed and acted upon by the District Environmental Coordinator and staff.
Path 2 Projects are defined as simple transportation improvements that include minor structure and roadway work.
Path 2 Projects can involve non-complex right-of-way acquisition (strip takes, temporary easements). These projects
will typically be processed as low level CE actions. Typically for these projects, supporting studies are coordinated
with ODOT-OES and upon their acceptance, the DEC develops the CE, conduct its review and confirmation as a
CE.
Path 3 Projects are defined as transportation improvements that generally are located on an existing alignment.
Small adjustments to the existing alignment to improve geometric conditions may be involved. Substantial
relocations of roadways that do not result in significant environmental impacts also can qualify as Path 3 Projects.
Path 3 Projects can typically be evaluated and processed as a documented or higher level CE. Typically, these
projects involve a higher level of review meaning that the ODOT-OES takes an active role in ensuring NEPA
compliance.
Path 4 Projects are defined as mostly rural transportation improvements, where the anticipated result of the
improvement is expected to have a significant impact to the highway’s public access, level of service, traffic flow,
mobility patterns, or mode shares; require substantial right-of-way acquisition; and have a high degree of public
controversy. These projects are typically located on a new alignment but could include any project type that might
impact a high-quality environmental resource, require agency coordination at several decision points in the PDP, or
have substantial public controversy. The context and intensity of impacts should be considered when addressing an
impact on a resource. Path 4 Projects may require a higher level CE, an Environmental Assessment (EA), or
Environmental Impact Statement (EIS) and ODOT-OES conducts all final reviews and NEPA compliance. . From a
design perspective, Path 4 Projects are those in which new highway alignments or significant alterations to existing
highway alignments will result in the examination of multiple alternatives as a necessary and systematic progression
to selecting the preferred alternative.
Path 5 Projects are defined as mostly urban transportation improvements where the anticipated result of the
improvement may be expected to include one or more of the following: have a significant impact to the highway’s
public access, level of service, traffic flow, mobility patterns, or mode shares; require substantial right-of-way
acquisition; require coordination of complex access management issues; require significant utility relocation; and/or
have a high degree of public controversy. It is possible for a Path 5 Project to require little to no new right-of-way,
such as an interstate widening within existing right-of-way. Typically, this type of project will be classified as a Path
3. However, examples of elements of the project which will elevate it to a Path 5 includes impacts to historic
properties or districts, Environmental Justice considerations or a high level of public controversy. These projects
may be located on new alignment but ultimately include any project type that might impact a high-quality
environmental resource, require agency coordination at several decision points in the PDP, or have substantial public
controversy. The context and intensity of impacts should be considered when addressing an impact on a resource.
Path 5 Projects typically require an EIS or EA NEPA document, but could in some instances also be processed as a
high level documented CE. ODOT-OES conducts all final reviews and NEPA compliance.
Project Scoping
During this early stage of project development, design engineers, environmental team members, and other district
staff bring forward key issues for consideration in development of the project. The information gathered during this
stage is used to develop the project scope (hereafter, "project scope" or "scope").
For ODOT, the project scope is developed in the form of a Project Initiation Package (PIP). The PIP is intended to
18 | P a g e
provide a snapshot of potential issues and concerns that could require major scope, schedule, or cost issues during
project development. Knowing about and avoiding problematic issues will save time and money. The PIP is
produced early in the Planning Phase by the ODOT District staff and is required for projects following Paths 2-5.
For Path 4/5 projects and some complex Path 3 projects, FHWA takes an active role in the scoping process. Though
it is unlikely that the PIP will be needed for a Path 1 project, it is possible that some technical and/or resource areas
may need to be considered on some projects. In those cases it is recommended that the PIP form be utilized to
document any issues.
The PIP must be developed, reviewed, and approved by the District. In addition, FHWA, Central Office and external
agency reviews may be necessary, especially for the higher level projects (Path 4/5). The information related to this
task is gathered by the District scoping team through secondary source literature searches and field reviews for the
purposes of refining the scope of a given project.
The PIP is a compilation of information collected by the project team and may include resource and issue areas on
USGS, aerial, or other mapping. Environmental, right-of-way, utility, and engineering are among the issues to be
identified and researched in the PIP within the project study area. The information gathered for the PIP may not
necessarily identify locations that must be avoided, but may also identify locations that may necessitate additional
study, coordination, creative management, design approaches, or increased right-of-way or construction costs.
Locations that must be avoided are considered as and referred to as “fatal flaws.” A “fatal flaw” could result from
significant social, economic or environmental impacts in an area. The Project Manager should ensure consultation
with the appropriate specialists to determine the level of concern for each major issue.
Identifying the project area resources in the study area involves documenting the results of secondary source reviews
and conducting a preliminary site review of the study area. The secondary source documentation provides an
inventory of known geotechnical, environmental, social, and cultural resources in the study area. Specific
environmental resources may include history/architecture properties, archaeology sites, wetlands, rivers and streams,
threatened and endangered species, land uses, Section 4(f) properties, environmental justice populations, public
water supplies, mines, and hazardous materials.
All of this information, plus field observations from the site visit, will be recorded on the PIP form. Field
observation data is critical, because what is seen in the field can trigger the need for additional investigation, can
confirm presence or absence of resources, and can identify resources that were not in the secondary sources
reviewed for the project.
Early in project development, a district environmental team member is part of the District’s core project team that
gathers preliminary environmental information and performs constraints analyses, which helps to influence the
project’s design concept and scope.
As required under FHWA's NEPA regulations at 23 CFR 771.123(b), ODOT’s PDP ensures the scoping process is
key for identifying key environmental issues related to a proposed action, and delineating roles and responsibilities
in the environmental review process. At the onset of the project, the Project Manager holds a kick-off meeting
involving all appropriate ODOT disciplines. Each project will require a separate kick-off meeting with the project
team to ensure that the activities are coordinated and understood.
Early in the project’s planning phase, ODOT’s project team lead by the Project Manager develops a Project
Initiation Package that defines many subjects and issues on a project. This package includes, but is not limited to,
the following information: Project Description, Project Limits/Study Area, External Agency Involvement, General
Existing Information, Crash Data, Environmental Issues, Geometric Issues, Geotechnical Issues, Pavement Issues,
Structural Issues, Hydraulic Issues, Traffic Control Issues, Maintenance of Traffic Issues, Right-of-Way Issues,
Utility Issues, Agency Coordination/Permit Issues, and Scope, Schedule and Budget Considerations. This package is
19 | P a g e
the project scope-of-work.
The Project Manager and the project team must ensure that the general area for which data is to be collected and
from which the stakeholders are to be identified and engaged is based on the size of the study area. The study area
must be big enough to include all areas that contribute to the transportation problem and encompass the range of
alternative solutions appropriate to solving the problem. The study area should continue to be larger than the
potential project’s logical termini. In addition, the analysis of the study area and logical termini will take into
account other current and future projects adjacent to or in the area of the current project.
For some projects, the Project Manager may require that discipline-specific submittals (for example, in Design,
Geotechnical, Environmental & Utilities) are needed to provide a more comprehensive perspective of the project
study area. These individual project packages provide supplemental information on the general project information
gathered as part of the overall Project Initiation Package.
Once finalized, the Project Initiation Package is used by the Project Manager and the project team to better
understand the project area and to scope the necessary work for the project. This process has been developed to
ensure consistency when identifying project issues. It also helps provide a level of statewide consistency among
ODOT district offices as they scope project work.
The Project Initiation Package must include documentation of the identification and involvement of stakeholders. To
ensure the public involvement effort creates and facilitates two-way communication, a public involvement plan is
developed for each project, as appropriate for each project. The plan outlines the strategy and responsibilities for
informing and involving stakeholders through the life of the project.
The Project Manager and the District DEC ensures development of a Purpose and Need Statement based on the
technical studies and stakeholder concerns that have been generated at this point in the life of the project. The
Project Manager and project team then update the cost estimate and milestone dates, and prepare the scope (i.e.,
schedule, deliverables, and budget) for the next phase of the project, preliminary engineering. The Purpose and
Need for Path 1, 2 and non-complex Path 3 projects is reviewed and approved by the District DEC. For higher level
projects, the District DEC provides a review of the Purpose and Need, but then ODOT-OES and FHWA provide the
final review and approval.
The scope serves as a management tool to guide environmental activities during project development, including
public involvement and resource agency coordination activities. The scoping process also helps scale the
environmental effort to the context and intensity of a project's anticipated impacts. The required project scope is
completed by the project team and may include consulting with SMEs.
For EIS projects, scoping, as required by Council on Environmental Quality (CEQ) and FHWA NEPA regulations
(40 CFR 1501.7; 23 CFR 771.123(b)), is also conducted. NEPA scoping is an early and open process for
determining the scope of issues to be addressed and for identifying the important issues related to a proposed
project. The EIS scoping process stresses early consultation with federal and state resource agencies, other state and
local agencies, tribal governments, and any federal agency from whom project approval or funding will be required.
Scoping is a mechanism to bring together and resolve the concerns of agencies, tribes, and the public. ODOT-OES,
jointly with FHWA, ensure the scoping process for EIS documents is completed per the requirements.
Technical studies are prepared, as needed, to address specific issues identified during scoping or at any other point
in the process. Public involvement and coordination are documented along with completion of technical studies. If
public involvement or agency coordination identify potential impacts, the district may work with project designers
to discuss ways to avoid or minimize those impacts. Once project alternatives have been defined and any necessary
technical studies and documentation are reviewed for accuracy, the district uses the interdisciplinary process to
develop or oversee preparation of the NEPA document. Lastly, the district environmental team is responsible for
20 | P a g e
completing quality control of the environmental elements of the project scope.
ODOT’s Project Planning
ODOT project planning begins with the identification and understanding that there is a problem at a general
location, it is a high priority and it should be addressed before other problems in the state or region. ODOT’s project
planning process does not begin with a specific project solution in mind. There are many avenues that identify
transportation problems or needs. ODOT has many assessment and prioritization tools such as ODOT’s statewide
safety and congestion analyses, Pavement Condition Rating System (PCR), Structure Management System, District
work plans, etc. The Metropolitan Planning Organizations (MPOs) conduct transportation planning for all modes to
identify their federally mandated 20 year Metropolitan Transportation Plan. As of July 1, 2013, there are five
Regional Transportation Planning Organization (RTPOs) in Ohio which are tasked with identifying the long range
needs of the non-metropolitan areas. Finally, local governments may have their own transportation plan, or utilize
independent systems’ analysis or feasibility studies to help them identify potential transportation problems and
needs. If applicable, the project sponsor should ensure that the potential project is identified as a need in an
appropriate comprehensive plan.
Once these potential problems and needs have been put forward, they are categorized and assigned to potential
funding source(s) embodied in ODOT funding programs. This programming of these potential projects involves
prioritizing and matching them with available funds through the various phases of project development. This is
accomplished prior to, but also aids in determining the scope of the potential project. ODOT Districts are
responsible for initiating these tasks and ensuring that potential projects advance through the project development
process in an appropriate and timely manner.
ODOT’s District Planning and Engineering staff, with the exception of locally sponsored projects, take the lead in
conducting project work tasks associated with the Planning Phase. It is the responsibility of the ODOT District team
to ensure that projects have been identified based on strategic transportation needs and funding projections prior to
starting the Project Development Process (PDP). There are numerous programs, studies and documents that outline
the state’s transportation needs and those that should be advanced based on existing conditions, functionality, safety
or program need.
The Planning Phase of the PDP discerns and validates the need for a transportation improvement but does NOT
assume the specific facility or project to be constructed. The PDP begins with a project level planning analysis to
help determine the right type, size, scope, phasing and location for a transportation facility, or an operational or
management solution to solve the identified transportation problem. This determination is to be completed before
time and money is expended on extensive environmental analysis or engineering assessment and design. All tasks
and activities that follow will support and aid the decision-making process in determining whether to advance a
project into more detailed preliminary engineering and environmental analysis, and on into final design and
construction. The information related to this task is gathered through secondary literature searches and field reviews
for the purposes of refining the scope of a given project. Among the environmental issues that must be given
preliminary consideration during this phase of the PDP are scenic rivers, historic bridges, floodplains, wetlands,
streams and waterways, archaeological sites, historic buildings, parks and recreation areas, threatened and
endangered species, air quality, landfills and industrial sites, farmlands, environmental justice populations and
public facilities.
During the Planning Phase, the project and its phases are identified in the Statewide Transportation Improvement
Program (STIP) or in the Transportation Improvement Program (TIP). All NEPA approvals must meet FHWA’s
fiscal constraint policy requirements, basically, no projects can be approved without the project being fiscally
constrained in the STIP or the TIP.
21 | P a g e
ODOT’s PDP- Preliminary Engineering
Preliminary Engineering is the second phase of the PDP. The purpose of Preliminary Engineering is to begin the
process of collecting more detailed information by conducting field investigations, other technical studies, and
engineering. This work builds upon and refines the information and analyses produced during the Planning Phase
and many tasks can be performed concurrently, as appropriate. A primary product of this phase is the
recommendation of the preferred alternative for a project.
The Feasibility Study is designed to analyze alternatives in order to identify a preferred alternative, or multiple
alternatives, through the PDP. This flexibility with the Feasibility Study is dependent on the PDP Path designated by
the Project Manager. Project Managers have the authority to adjust Feasibility Study tasks in order to align the
project needs and deliverables with the project scope. A Feasibility Study is not required for Path 1 projects.
Typically for Path 2 and Path 3 projects the product of the Feasibility Study is the preferred alternative. For very
simple projects, only one build alternative may be considered and compared against the No Build condition.
Typically on Path 4 and Path 5 projects, the outcome of the Feasibility Study will be a limited number of feasible
alternatives to be studied further. Regardless of the project path, developing the Feasibility Study is not intended to
be a lengthy process. Project related tasks that are important in the development of alternatives include, but are not
limited to:
Field Survey and Aerial Mapping
Planning Level Traffic or Certified Traffic (for Path 2 and 3 projects Certified Traffic will most likely be
obtained)
Capacity Analysis of the No Build to define the existing and future operational conditions
Capacity Analysis of the proposed alternative(s)
Crash Analysis if a stand-alone Safety Study has not already been completed
Typical Sections
Preliminary Alignment and Profile
Cross-Sections
Geotechnical Deliverables
Mapping
Environmental Analysis
Public Involvement and Stakeholder Coordination
The project site should be visited to observe, document, and verify any such environmental issues for the PIP. The
project team should document concerns and evaluate their validity throughout the Project Development Process. The
initial set of alternatives should be broad enough to allow for a wide range of possible solutions, while at the same
time taking into account the project’s relative size and scope. The alternatives identified and examined at this level
should be considered feasible solutions to the transportation problem. The Project Manager should consider items
such as traffic operations, environmental impacts, maintenance of traffic, pavement type and thickness, geometric
improvements, alternate structure types, or possible structure rehabilitation. The no-build alternative should be
considered for all projects, as it serves as a baseline condition against which alternative strategies will be measured.
For Path 1 through Path 3 Projects, the alternatives under study can be more design-specific in nature than
alternatives for projects defined as Path 4 or Path 5.
Based on the potential for environmental impacts, as documented in the secondary source review (the PIP) in the
Planning Phase, a determination is made on the required level of environmental field studies and agency
coordination for each environmental resource.
Field Studies are used to quantify, and qualify, the characteristics of the natural and man-made environment.
Environmental field studies are conducted on the alternatives and documented in the Feasibility Study (FS). Reports
22 | P a g e
generated from these field studies help to determine whether further investigation and agency consultation is
warranted. If OES staff concludes that additional environmental field studies are necessary to refine impacts, the
work is conducted only within the preferred alternative, during the Environmental Engineering phase. For cultural
resources, the District must submit a Section 106 Request for Review to OES prior to having any Phase I field work
scoped and initiated. If warranted, the following studies are conducted:
• Ecological Survey Report (water resources, plant and animal species, terrestrial habitat, farmland)
• Phase I History/Architecture survey (following a Section 106 Request for Review)
• Environmental Site Assessment Screening (hazardous waste, landfills)
• Social and Economic Resources (environmental justice, Title 6, community issues)
• Section 4(f) determination (parks, recreation areas, wildlife/waterfowl refuges and historic sites)
• Preliminary analysis of Section 6(f) resources (i.e., identification of presence/absence).
• Preliminary noise analysis.
The amount of data collected and coordination will vary based on the impacts associated with the project. For
example, some projects may be cleared through one of OES’s streamlined agreements, while other projects may
require more detailed analysis, documentation and additional coordination efforts. OES has established mechanisms
for streamlining the environmental process for some resources. These processes exist in the form of Memoranda of
Agreement (MOAs), Letters of Agreement (LOAs), and Programmatic Agreements (PAs) and are later further
defined in this Application. The streamlined processes should be evaluated for applicability to the project during
this phase.
Prior to conducting the field studies, the Project Manager ensures that letters are mailed to property owners and
tenants notifying them of ODOT’s intent to access their property. Individual field survey reports present the results
of technical field studies conducted within the feasible alternatives. These results are added to project mapping that
began development in the Planning Phase. In addition to the results of the field surveys, the updated project mapping
includes all available information regarding the approximate locations of homes and businesses, as well as any other
pertinent data from the field. The project management team should be aware that there is sensitive data that can be
on mapping used by the project team, but should not be included on mapping exhibited or distributed at public
meetings. Specifically, the location of archaeological sites and threated and endangered species should not be
publicly disclosed.
Field checks verify the accuracy of the information prior to submissions of the mapping to the ODOT District and
ODOT-OES.
For many projects, the FS is the only documentation explaining how the Preferred Alternative was chosen. Typically
for Path 2 and non-complex Path 3 projects, the Project Manager will approve the FS and Alternative Evaluation
Report (AER) (if required). For complex projects (complex Path 3, Path 4 and 5 projects), the FS narrows the
alternatives to be refined in the AER. As a general rule, an AER is prepared only if a FS has already been prepared
and identified the need for further evaluation of alternatives. For these complex projects, both ODOT-OES and
FHWA review and approve these documents. In addition, for complex projects, the FS and AER are coordinated
with the state/federal resource and regulatory agencies for review prior to approval.
In either case, the purpose of the FS (and AER, if applicable) is to summarize the issues such that a lay person (or a
court of law) can understand how the Preferred Alternative, or narrowed range of alternatives, was chosen. The
reader does not have to agree with the decision, but he/she should be able to clearly understand the issues considered
and how they were balanced to make the choice.
Once the District and OES approve the results of the feasible alternative field studies, the Project Manager
coordinates scheduling of public involvement activities, as necessary. If a decision could not be made on a preferred
23 | P a g e
alternative, then the project team would prepare an AER. The AER is designed for refinement of preliminary
engineering to identify opportunities for environmental mitigation or avoidance to determine the Preferred
Alternative. Under FHWA’s new flexibility regarding the level of engineering that may be done early in project
development, ODOT is now able to take advantage of using preliminary engineering level work to aid in the
determination of a preferred alternative, in conjunction with NEPA analysis.
An AER will not be compiled for Path 1 and 2 projects, and it is unlikely that a Path 3 project will have one
prepared. The AER is primarily used on Path 4 and 5 projects, but may be used for some Path 3 projects.
All work carried out during evaluation of the alternatives will be documented in the Feasibility Study and the
Alternative Evaluation Report. These studies will discuss environmental and design issues, then recommend a
preferred alternative. Once a preferred alternative is chosen, staged design can begin concurrently with NEPA
studies and permits, as appropriate for the project and prior to approval of the environmental document. Understand
that moving forward in this manner, while allowed, is done at some assumption of risk that the Project Manager will
have to consider.
ODOT’s PDP- Environmental Engineering
Environmental Engineering is the third phase of the PDP. The purpose of Environmental Engineering is to perform
detailed environmental analysis of the preferred alternative concurrently with detailed engineering and other
technical studies. This work builds upon and refines the information and analyses produced during the Preliminary
Engineering Phase.
Environmental Engineering is the phase of the project which takes a detailed look at the preferred alternative and its
associated impacts within the context of the design work that has been completed. The intent of the process is to
have refined environmental studies and design work initiated concurrently on the preferred alternative, along with
solid decision-making. This chapter will outline several key tasks that are critical to developing a project through
this phase.
Environmental field studies are typically conducted within the construction limits of the preferred alternative in
order to refine the level of impacts associated with the alignment. Based on the understanding of potential
environmental impacts, as documented in the Project Initiation Package (PIP), Feasibility Study, Alternative
Evaluation Report (AER) and supporting environmental studies, a determination is made by the project team
regarding the necessary level of environmental field studies and regulatory agency coordination that are needed.
Below is a list of environmental studies conducted during this phase of the PDP:
Environmental Study Areas
• Phase I & II Archaeological Survey
• Phase II History/Architecture Survey
• Section 4(f) Evaluation
• Section 6(f) Evaluation
• Phase I & II Environmental Site Assessments
• Farmland Studies
• Field reviews and research of social and economic resources
• Relocation Assistance Program Survey
• Environmental Justice
• Fieldwork for Ecological Resources
• Noise Analysis
• Floodplain Coordination
• Waterway Permit Determination Package & Permits
• Stream & Wetlands
• Air Quality Analyses
24 | P a g e
• Others as needed.
Field studies are used to quantify and qualify the characteristics of the natural and built environment. Reports
generated from these field studies help determine whether further investigation is warranted. Prior to conducting the
field studies, the Project Manager ensures that letters are mailed to property owners and tenants notifying them of
ODOT’s intent to access their property.
Individual field survey reports present the results of the technical field studies for the preferred alternative.
Once the District and OES approve the results of the studies, the Project Manager directs the scheduling of the
public involvement activities, as appropriate for the project. Path 1, Path 2, and Path 3 projects typically do not
require extensive public involvement activities, but Project Managers should be sensitive to stakeholder interests and
concerns, and respond to any stated concerns. Larger Path 4 and Path 5 projects will likely require extensive public
involvement activities and these should be closely coordinated with the project sponsor and project team.
The Project Manager and District environmental staff ensures that the environmental documentation is prepared as a
project develops. Numerous studies and investigations are prepared to determine social, economic and
environmental impacts, and should be used to document project issues in accordance with NEPA. The
environmental document, whether Categorical Exclusion (CE), Environmental Assessment (EA) or Environmental
Impact Statement (EIS), requires specific criteria and approval processes through ODOT’s and FHWA’s processes.
The complete environmental document is reviewed by the review team comprised of: ODOT OES NEPA staff, OES
SME’s, District Environmental staff, District SME’s, FHWA and the Project Manager.
The review team performs a detailed review of the document and necessary supporting documentation. This review
is designed to ensure that the environmental document is NEPA compliant, internally consistent, consistent with the
supporting technical studies, and meets the requirements of federal and state environmental statute, regulation, and
policy. In the event that supporting studies and documentation were not evaluated prior to submittal of the
document, they will be reviewed for their adequacy and content at this phase.
For EAs and EIS documents, this team will be supplemented by OES’ Environmental Administrator and for
complex projects, legal staff is added, to provide a fresh set of eyes for document review and to ensure the legal
review and/or legal sufficiently (if required) of the product. For these projects ODOT may retain specialty
consultants (public involvement specialist, etc.) and/or consultant legal staff that specialize in environmental
matters. In addition, ODOT has an ODOT-OES attorney who provides day to day counsel to OES on an as needed
basis. This person oversees and ensures final compliance on any legal matters, even if outside legal consultants are
used for support work. When legal sufficiency reviews are required, FHWA performs those necessary reviews
(specifically on EIS documents and Individual Section 4(f) documents. FHWA’s legal also reviews complex EA’s
and discipline specific studies review, when requested. Also for EA/EIS development, OES utilizes a “reader-
friendly” format for document preparation. These documents are produced in a question and answer format with the
use of graphics and tables to ensure easy and quick understanding by the public and reviewing agencies. ODOT’s
overall process focuses on an avoidance of impacts philosophy that ensure impacts to environmental resources a first
avoided, then minimized when impacts are unavoidable. This helps to keep the NEPA document streamlined as
well.
Process for Local Government-Sponsored Projects
Local Public Agencies (LPA) (local governments) projects can be project sponsors of projects with federal aid.
Projects with designated local government project sponsors are managed the same as State sponsored projects. Once
received at ODOT, local government project environmental documents and studies are reviewed in the same manner
as projects sponsored by ODOT, and meet the same quality standards as ODOT projects. These local government
25 | P a g e
projects follow standard ODOT/FHWA environmental document production, review, and approval processes.
ODOT or FHWA will not approve any local government NEPA document until it meets federal environmental
requirements.
Approach to Categorical Exclusion Documentation Preparation ODOT’s environmental teams develops and process nearly 1000 projects each year; nearly 98% of NEPA
documentation associated with the program is completed as a Categorical Exclusion -- actions that do not
individually or cumulatively have a significant environmental impact. ODOT has been able to achieve this because
of our partnership with the FHWA.
In 1998, ODOT and FHWA first developed a Programmatic Categorical Exclusion Agreement (aka CE
Programmatic Agreement) that created different levels of CEs based upon context and intensity of the environmental
impacts. The Programmatic Agreement, which was just updated in February 2015, was developed using 23 CFR
771 as a guide (See Appendix E for the approved CE PA). The Programmatic Agreement enables low impact
projects to be documented and cleared by ODOT District Environmental Staff, medium level impacts by OES staff,
and higher impacts projects by FHWA.
All CEs are classified as “C” or “D” listed CEs in accordance with 23 CFR 771.117 and the CE PA. The appropriate
approval of a CE is determined based upon the type of action and the impact of the project. The documentation and
approval process are discussed in the CE PA and all actions will be processed using ODOT’s Online CE program or
its successor. Once a CE is approved, the approval is automatically entered into ODOT’s tracking systems and
communicated electronically to FHWA so that FHWA may process project authorizations timely for ODOT letting.
All NEPA approvals must meet FHWA’s fiscal constraint policy requirements, basically, no projects can be
approved without the project being fiscally constrained in the STIP or TIP.
In accordance with this PA, “C1” projects do not require documentation beyond verification that they meet the
criteria presented in Appendix A of the CE PA. However, “C2” projects require documentation as a result of
changes implemented by MAP-21 Moving Ahead for Progress in the 21st Century Act (P.L. 112-141) as presented
in Appendix B on the CE PA. Projects identified as meeting the criteria of 23 CFR 771.117(d) are processed
according to context and intensity of impacts to environmental resources in accordance with Appendix C of the CE
PA.
CE Action— “D listed” Actions
Pursuant to 23 CFR 771.117(d), projects may qualify as a CE if appropriately analyzed and whose documentation
serves as a basis for FHWA approval. These “documented” or “D” project actions can include projects with
impacts not discussed in the CE PA or those with higher impacts than listed as “C1” or “C2” actions. Projects in this
category must meet the intent of 23 CFR 77 1.117 (d), satisfy the criteria for CE Classification, and do not involve
unusual circumstances (including significant environmental impacts). The confirmation of “D1” projects will be by
the District Environmental Coordinator (DEC) or ORDC Environmental Coordinator (EC). The confirmation of
“D2” actions will be made by ODOT’s OES and “D3” actions must be performed by FHWA. However, with the
NEPA Assumption program, “D3’s” will be approved by ODOT OES.
The process is the same for local government CE projects. The CE process is shown in Figure 7.
Figure 7. Categorical Exclusion Process
Categorical Exclusion
Determination
26 | P a g e
Public Involvement Procedures
The ODOT Public Involvement (PI) process is designed to go beyond simply meeting legal requirements. ODOT’s
PI process and Manual was updated and approved by FHWA in June 2014. The Manual and training focus on the
fact that conducting PI simply to meet legal requirements neglects the purpose of informing, engaging, and meeting
the needs of stakeholders and the public. Planning and conducting comprehensive PI assists decision-makers in
understanding community needs and promotes meaningful dialogue to take place in order to develop viable
transportation solutions. While meeting legal requirements is important, ensuring stakeholders and the public is part
of the process is equally, if not more, important.
As a component of ODOT’s environmental process, PI is conducted to:
• Establish early and continuous communication with stakeholders and the public
• Convey project needs in regards to existing transportation problems
• Understand and address, to the extent practicable, diverse concerns, needs, values, interests, and desires
of the community
• Obtain alternate viewpoints
• Increase credibility, trust, and transparency
• Identify, reduce and resolve controversy
• Comply with Federal and state regulations
Furthermore, PI is integrated into ODOT’s Project Development Process (PDP) so that each project incorporates the
following strategies:
• Distribute information, materials, and project notifications in a timely fashion
• Provide adequate notice of PI activities
• Ensure sufficient time is built in for public review and comment at key decision points
• Consider and address all comments appropriately
• Consider and address the needs of minority and low‐income populations
• Conduct PI activities in accordance with Title VI requirements
Conducting public involvement (PI) ensures legal requirements are met, stakeholder and public expectations are
managed appropriately, and that the public is included in the transportation decision-making process. To achieve
this, the Ohio Department of Transportation’s PI process is designed to obtain an array of viewpoints and concerns
that pertain to specific transportation and community needs. While the level of PI is dependent on a project’s type
and complexity, opportunities for proactive engagement and outreach occur not only during the early stages of
project planning and development, but throughout the life of a project.
All transportation projects require early and continual PI opportunities during project planning and development in
accordance with existing regulations found at 23 CFR 771.111. An appropriate level of PI is required to be
conducted based on a project’s type and complexity. A higher level of PI will be conducted for projects that require
completion of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) versus those that are
Categorical Exclusions. Public involvement activities for an EA and EIS may include a public hearing per 23 CFR
771.119(b) and 23 CFR 771.123(b), respectively and typically FHWA participates in these events. ODOT
implements a public involvement program, based on 23 U.S.C. §139(g), 23 CFR 771.111(h), and Ohio Revised
Code, the combination of which encourages opportunities and provides guidance for interagency coordination and
public participation.
Based on project classification, project description, public interest, the potential for controversy on environmental
grounds, or potential impacts, the ODOT Public Involvement Manual prescribes when a project sponsor must meet
with affected property owners, hold a public meeting, afford an opportunity for a public hearing, or hold a public
27 | P a g e
hearing. ODOT conducts open houses, individual stakeholder and property owner meetings, neighborhood meetings,
elected official briefings, and public meetings, as necessary, during the environmental process. A public hearing or
the opportunity for a public hearing is offered for some CE projects and for all EA projects. Scoping, public
meetings, and public hearings are held for all EIS level projects.
During scoping, ODOT determines the type of public involvement needed for the project, based on the context and
intensity of the project and its potential impacts. Depending on a project’s type and complexity, District
Environmental Staff, the Project Manager (PM), or the Project Management Team will be responsible for
incorporating PI requirements. The Project Management Team may be comprised of, but is not limited to, the
District Environmental Coordinator (DEC), the project manager, environmental specialists, planners, engineers,
designers, support staff, and consultants. For an EIS, that plan is formalized as a component of the Coordination
Plan as required by 23 U.S.C. §139(g). The public outreach plan describes how the project team will establish and
maintain communication with the public, ensure the public remains informed about the proposed project, and ensure
the public has an opportunity to provide input, as may be appropriate given the nature of the project. Details
regarding stakeholders identification (stakeholder database), strategies that will be used to convey information to the
public (social media, newsletters, flyers, websites, newspapers, radio, TV, message boards, and etc.), and anticipated
small group involvement (meetings, open houses, etc.) may be described in the public outreach plan.
ODOT currently follows the requirements of 23 U.S.C. §139 for efficient environmental review and applies it to all
projects for which EISs are prepared. These requirements emphasize collaboration between federal, state, local and
tribal entities and the public when preparing EISs. It defines the lead agency and provides direction on identifying
participating and cooperating agencies. 23 U.S.C §139 requires lead agencies to provide, as early as practicable in
the environmental review process, an opportunity for the public and participating agencies to provide input in the
development of the purpose and need and the range of alternatives to be considered. It states the lead agency will
also collaborate with the cooperating and participating agencies during the study process on study methodologies to
be used, and level of detail required for the analysis of project alternatives. Following the requirements of 23 USC
§139(g), the Coordination Plan identifies the lead agencies for the project (federal, state and local) along with the
cooperating and participating agencies and describes expectations for each of the roles. The plan also describes the
coordination that will take place and includes guidance for inter-agency coordination and ways to encourage
opportunities for agency and public participation during scoping, development of purpose and need and alternatives,
and public review of the environmental document.
Environmental staff and project designers, as needed, review public and agency comments received during meetings
and hearings and evaluate the comments. Modifications to the alternatives or design concepts may then occur based
on the comments received. Any project changes as well as responses to public comments are included in a public
involvement summary and analysis report that is developed for each public meeting or hearing. Public meeting and
public hearing summary reports are then made available to the public. ODOT is also developing a public comment
system that will allow the public to enter into comments on any ODOT project at any time. This web based system
will allow ODOT to track the comments, sort by themes and to make them available for viewing by the public. This
system is expected to be in operation in 2015.
ODOT’s Commitment to Quality and Quality Control Procedures
ODOT is working to implement FHWA’s Every Day Counts initiative on Quality Documents. As part of this effort,
ODOT is working to streamline the PDP by implementing a "reader-friendly" approach to documentation. This new
process involves greater collaboration among environmental document preparers and reviewers, and a focus on
shorter EAs and EISs that are centered on presenting the environmental and project information most important for
public understanding and project decision-making. Technical studies are separately prepared and reviewed and then
incorporated into the environmental document by reference, briefly summarized or included as appendices. These
studies are usually evaluated before the environmental document is submitted for review, which prevents technical
study errors from entering the environmental document and extending the duration of document review time.
28 | P a g e
ODOT’s approach emphasizes collaboration between district and OES staff at key points during the environmental
process to ensure that studies and documents are appropriately scoped and that finished products are acceptable prior
to final review and decision. This approach is being implemented to reduce the level of effort of sequential
production and review of studies and documents. Further, it serves to reduce rejection of documents as a result of
preventable errors in technical work. Over the course of developing a project, district and OES staff consider
preliminary environmental data, identify environmental constraints, and work in coordination with design staff to
perform environmental impact analyses.
ODOT ensures both quality assurance (QA) and quality control (QC) processes are built into our everyday actions.
QA is devoted to preventing problems, whereas QC is devoted to identifying and correcting problems. Both QA and
QC steps are built into the project environmental document preparation and approval process.
ODOT’s process is structured to include very high levels of QA throughout the project-specific environmental
process. ODOT’s projects are typically managed in a team format where the PM and SME’s work closely together
to foster an environmental focus on communication and problem solving. This team concept itself is a QA feature
that ensures that the persons producing and approving documents communicate mutual expectations about what is
needed for a project. Consistent interaction between the PM and any involved SMEs is intended to resolve most, if
not all, problems before the document is completed and ready for review. FHWA is also active in this review cycle
for complex discipline specific areas, like Section 4(f), for complex Environmental Justice projects, etc.
Environmental documents go through QA/QC at several stages during their development and review. Environmental
scoping (described above) is the first early QA activity intended to prevent late identification of issues that could
cause delays or lead to unsupported environmental decisions. Each phase of ODOT’s PDP (described above) has
decision and support documents that are generated and reviewed by ODOT and FHWA (for higher level projects).
Each of these are supported by various guidance documents, described below, that help ensure the development of
adequate and supported environmental documents and technical studies.
The process for approving environmental documents has several QC points. As determined by ODOT’s PDP and
environmental manuals/guidance, key environmental technical studies and consultation documentation are subject to
QC review by qualified SMEs located in districts and/or at OES. Fundamental problems may be detected and
corrected at any level within ODOT’s review process. This process prevents unnecessary expenditures of time and
resources and ensures the necessary amount of detail and effort is developed on each project.
The next QC opportunity is when the environmental document is reviewed for content by the project team, SMEs
and FHWA, as appropriate. This QC step ensures that environmental documents are satisfactory for public
disclosure. This process is managed by the project team, who works with SMEs to provide QC review of the draft
environmental document and, later in the process, the final environmental document. Technical review is completed
by SMEs for projects that have specific resource concerns or potential impacts. The project team identifies issues
that must be addressed, and the district revises the document accordingly. This process continues until the project
team determines that the document is ready for final review and approval. A standard QC matrix is used to
document review comments and their resolution. This matrix acts as a formal record of the comment and response
progression and is intended to ensure clarity and efficiency in the QC process.
In addition to the technical review described above, a legal review is completed by the ODOT-OES attorney or
ODOT’s outside environmental counsel on complex EAs and EIS actions and specifically, the Feasibility Study
and/or the Alternative Evaluation Report. The primary goal of this review is to assess the document from the
perspective of legal standards, litigation risk, and legal defensibility. ODOT’s legal review occurs before approving
the DEIS for public notice, and again prior to final acceptance of the FEIS/ROD for project decision. This review is
in addition to FHWA’s legal sufficiency review, where required.
Lastly, ODOT regularly assesses its environmental compliance program and identifies and implements actions
29 | P a g e
designed to improve the program's effectiveness and timeliness. Its guidance tools are designed to support staff in
accurate development and review of project environmental documentation to meet federal and state standards and
requirements.
Since 1998, ODOT has conducted routine performance reviews for projects approved in the districts under our CE
Programmatic agreement. CE projects are evaluated by a joint ODOT and FHWA process review team to determine
if findings were appropriate, decisions were made by authorized staff, project scopes were complete and accurate,
project descriptions were complete, and tasks required in the project scope were undertaken and appropriately
documented in the project file. These process reviews are conducted on four District’s per year and involve on-site
reviews, interviews and can even involve field reviews. ODOT also reports out each year on the process review
findings at annual trainings with all ODOT environmental staff. This way, each District is learning the results of the
process reviews, even if their District wasn’t reviewed in that time frame.
In addition to these internal reviews, ODOT environmental staff also participate in FHWA-sponsored process
reviews undertaken to evaluate various potential risk elements of the ODOT environmental program, and otherwise
work together to examine and improve elements of the ODOT environmental compliance program. Recent joint
ODOT and FHWA process reviews have examined ODOT’s Public Involvement Process and the tracking and
following through on environmental commitments.
Environmental Commitments
Consideration of environmental commitments begins at the earliest phases of project development, although
completion of commitments may not occur until the operation and maintenance phase of a project. Depending upon
the nature of the commitment, environmental commitments may be implemented during final design; or prior to,
during, or after construction is completed. ODOT requires that environmental commitments be communicated from
environmental approval through detailed design, pre-bid conference, project letting, maintenance, and operation.
ODOT’s On-line CE system captures each environmental commitment and helps to communicate the commitments
as the project is developed through ODOT’s PDP. In addition, ODOT is piloting an environmental commitment and
tracking system (ECTS) that will track the commitments during the construction phase and allow the project team to
better record how each commitment has been met; and identify responsibility for the commitment. Environmental
commitments that affect construction can be communicated to contractors via this system as well as in the General
Notes, layouts and Stormwater Pollution Prevention Plan (SW3P) in the final plan set, and are discussed during pre-
construction meetings. Environmental commitments are usually conveyed to the public in the NEPA decision
document (CE determination, Finding of No Significant Impact (FONSI), or Record of Decision (ROD). The pilot
period for this new program is expected to continue through 2015 with the hope that the program will be fully
launched in 2016.
Tools and Guidance
For over four decades, ODOT has worked with FHWA to implement NEPA on ODOT’s program. As the state
highway agency, ODOT routinely prepares and reviews NEPA documents for FHWA’s independent evaluation and
approval. Local agencies and their consultants also prepare NEPA documents for local government projects and for
locally-sponsored projects under the guidance and oversight of ODOT. These documents are reviewed by ODOT
prior to their submittal to FHWA. In addition, ODOT certifies that certain types of CEs meet regulatory
requirements. Through programmatic agreements, ODOT has also been entrusted with the authority to act on behalf
of FHWA for specific programs, such as informal Section 7 consultation, and most federal historic preservation
consultations.
To implement NEPA effectively, ODOT has developed a broad assortment of policy and guidance materials that
guide environmental document development and provide specific requirements for individual technical subject
areas. These tools and guidance ensure that environmental documents and technical reports meet quality standards
and are consistent with federal and state requirements.
30 | P a g e
ODOT has prepared a variety of manuals, guidance documents and checklists that provide transportation
practitioners with a practical approach for conducting analyses and ensuring that environmental issues are
appropriately addressed. Guidance documents, policies, procedures and other related items are available on the
ODOT Office of Environmental Services website at:
http://www.dot.state.oh.us/Divisions/Planning/Environment/Pages/default.aspx. The site contains standard operating
procedures, methodologies, documentation standards, review standards, handbooks, and guidance covering technical
aspects of each resource category including air quality, environmental justice, indirect and cumulative impacts,
public involvement, Sections 4(f) and 6(f), hazardous materials, archeology, ecological resources, community
impacts, historical studies, traffic noise, and more.
ODOT implements its public involvement program, based on 23 CFR Part 771.111 and 23 USC §139(g), and as
described in its Public Involvement Manual. The program encourages opportunities for public input and provides
guidance for interagency coordination and public participation during various stages of project development.
Additional Guidance
In addition to ODOT’s own guidance, ODOT and its consultants use the wealth of FHWA NEPA guidance in
developing environmental documents and studies. FHWA provides an on-line set of guidance
(http://www.fhwa.dot.gov/environment/ and http://environment.fhwa.dot.gov/guidebook/index.asp) covering a
comprehensive listing of environmental topics. Each topic is covered in depth with direction and methodologies for
performance of studies and assessments ranging from community impact assessments to air analyses. FHWA's
Environmental Review Toolkit (http://environment.fhwa.dot.gov/index.asp )includes comprehensive guidance on a
wide variety of topics such as historic preservation, environmental justice, water, wetlands and wildlife and Section
4(f), to name a few.
ODOT’s Training Program
ODOT’s process requires on-going project-specific collaboration between the district and OES to ensure the
foundation for an effective environmental project development process. This will come from district and OES
professionals developing mutual expectations and maintaining communication throughout the process, while being
supported by an effective QA/QC process and a rigorous training program.
ODOT’s OES offers a very robust and diverse group of specialty training classes to meet the needs of not only OES
employees, but other ODOT personnel such as district environmental, planning and production staff, highway
workers, project managers, and other central office personnel who work with NEPA and the Project Development
Process. Each training course is specially designed to provide the latest regulatory requirements and updates on the
ODOT process for completing NEPA documents for transportation projects. FHWA actively participates in the
development and presentation of many of these training classes. Over the last fifteen years, ODOT has trained
nearly 4,000 individuals. Below is a list of the training courses offered by OES:
Categorical Exclusion – two day class
Ecological – one day class
Ecological, Permits, Stormwater Management, & ESA – one day class
Environmental Issues and Facility Tour – one day class
Environmental Policy Overview – one day class
Environmental Site Assessment – one day class
Managing the Environmental & Project Development Process (NEPA) – five day class
Project Development Process (PDP) – one day class
Public Involvement – one day class
Purpose & Need – one day class
Regulated Waste Removals and HAZWOPER Awareness – one day class
31 | P a g e
Section 4(f) & 6(f) – one day class
Section 106 – one day class
Waterway Permits – one day class
In addition, since environmental prequalification requirements went into effect in 1997, environmental training has
been required for consultants wanting to perform environmental work on ODOT projects. Prequalification of
consulting firms is one element of the Department’s qualifications based selection process. The Department will list
the minimum level of required prequalification with project notifications. Only consultants that are prequalified in
these required categories are eligible to be selected. There are fifteen Environmental prequalification categories.
Below is a list of those categories and the associated required OES training courses.
Prequalification Category Required Training
Environmental Document Preparation - EA/EIS
NEPA, Categorical
Exclusion
Environmental Document Preparation - CE Categorical Exclusion
Environmental Document Preparation - 4(f) Section 4(f)/6(f)
Ecological Surveys – All Ecological
Ecological Surveys – Aquatic Ecological
Ecological Surveys – Terrestrial Ecological
Ecological Surveys - Wetland Delineation Ecological
Stream & Wetland Mitigation n/a
Waterway Permits
Waterway Permits,
Ecological
Noise Analysis & Abatement Design n/a
Air Quality Analysis n/a
Archaeological Investigations Section 106
History/Architectural Investigations Section 106
ESA Screening, ESA Phase I & II n/a
ESA Remedial Design n/a
Environmental training classes are conducted for the most part by OES Staff, with the exception of our most in-
depth class, for which a consultant is hired to do most of the training. Classes are offered on a need basis, with a
schedule of two-three times a year. In addition to the on-going training classes, the Office of Environmental Services
offers other specialized training as needed; such as Reviewing/Writing NEPA documents, Geographic Information
Systems, etc.
OES also holds Environmental Update Meetings twice each year, which all consultants are encouraged to attend.
These meetings are to provide updates on any policy/law/regulation changes, ODOT’s program, upcoming projects,
etc. In addition, OES meets with all District Environmental staff three times each year to provide the same type of
information and holds a Tank and Hazardous Waste Conference with all pertinent ODOT facility staff. This ensures
that everyone has the most up to date information.
In late 2013 and early 2014, ODOT launched a project manager (PM) training program where ODOT’s PM’s all
were required to take a large number of required environmental courses. This program was focused on making sure
ODOT’s PM’s have the tools and skills to manage their assigned projects efficiency and ensuring the right decisions
are being made. To date, over 75% of ODOT’s PM’s have completed the environmental related courses with the
rest expected to be completed in 2015.
32 | P a g e
With the NEPA Assignment Program, ODOT and FHWA will continue to partner to develop and conduct trainings
and updates as usual.
Online CE System
The Online CE System is used to develop the CE projects and approval. It includes all of the supporting detail for
these actions and includes tasks for NEPA reviews and fields in which to record impacts, decisions and
commitments. There are fields in which to record the start and end dates of various activities, including the dates
from which to calculate the duration of the environmental process from the beginning to the end as well as the
durations of individual components.
ODOT’s Online CE System contains the official project environmental file of record for all CE projects. EA and
EIS projects will use this system for project filing and storage of all records as well. FWHA’s eNEPA system will
be used for all EA and EIS projects and will serve as a support vehicle to allow agencies to easily have access to
larger sized documents associated with these projects. The On-line CE system has been used since 2013 and eNEPA
will be used with the launch of the Assignment program for any new EA or EIS projects. Both systems undergo
continuing development. These systems are electronic systems that serves as a management and analytical tool, and
as a repository for all project-specific environmental technical studies, analyses, agency coordination, environmental
documents and decision documents.
The system has capabilities for analyzing performance of the ODOT environmental program as a whole. This system
will be used for ODOT’s self-assessments as well as to assist in the FHWA audits under NEPA Assignment.
Programmatic Agreements and Agency Consultation
Together with other federal agencies, ODOT has also participated in the development of, and is a signatory to, a
number of programmatic agreements (PA) and MOUs that streamline the environmental review and project delivery
process. MOUs and Pas spell out the terms of a formal, legally binding agreement between ODOT and other state
or federal agencies. A MOU/PA may establish a process for consultation, review, and/or compliance with one or
more state/federal laws. It may also function as an expression of collaborative intent between agencies. ODOT has
several MOUs and PAs, as described below:
Programmatic Categorical Exclusion Agreement
The primary purpose of this Agreement is to increase flexibility, streamline the environmental process
and reduce paperwork. This Agreement provides for the expeditious processing of CE level actions by the
Ohio Department of Transportation (ODOT) under the guidance of and with the approval of FHWA.
Programmatic CE actions meeting the criteria established under this Agreement are deemed approved by
FHWA, do not require further NEPA approvals by FHWA, and do not require FHWA’s signature. ODOT
and FHWA has had a CE PA in place since 1998 and the most recent version was just approved in
February 2015.
Section 106 Programmatic Agreement
In 2002 the FHWA, the Advisory Council on Historic Preservation (ACHP), the State Historic
Preservation Office (SHPO), and ODOT entered into a Section 106 PA to streamline compliance under
the National Historic Preservation Act. This PA was amended in 2011 and is currently being considered
for amendment in response to the updates to the CE PA (discussed above). Under the provisions of the
current Section 106 PA, FHWA authorizes ODOT to perform many of the Section 106 steps, yet retains
direct involvement for those aspects of Section 106 that are more complex, relate to other FHWA
statutory responsibilities such as Section 4(f), or involve financial decisions regarding the
33 | P a g e
reasonableness of mitigation. The Section 106 PA requires ODOT to carry out the following tasks (1)
determination that an undertaking exists; (2) determination of the Area of Potential Effect (APE) of an
undertaking; (3) determination of the eligibility of properties for listing in the NRHP within a project’s
APE; (4) determination of effect; (5) interpretation of Archaeology and Historic Preservation: Secretary
of the Interior’s Standards Guidelines (48 FR 44716); (6) determination of boundaries for properties
considered eligible for listing in the NRHP; and (7) conformation with the SHPO’s and ODOT’s
guidelines. Under the PA, most projects are approved by ODOT because they are defined as projects
with no potential to affect historic properties.
Tribal Operating Guidelines
Since 2005, the FHWA and ODOT have had an operating agreement with 15 federally-recognized
Native American tribes to streamline the Section 106 tribal consultation process. The Tribal approach is
designed to streamline the review process by allowing ODOT to coordinate directly with the tribes while
clearly indicating FHWA is always available for government to government consultation, if requested by
the tribe. The process clarifies for the tribes the process that ODOT will use to coordinate on Section
106 eligibility, effect, and mitigation, thus improving communication with the tribes and preventing
delays. It also lays out the process for determining what projects require tribal consultation. Although
this informal agreement provides a mechanism for the tribes to coordinate projects directly with ODOT,
the FHWA, as the federal agency responsible for government-to-government tribal consultations, has
final authority to conduct formal consultation with tribes under Section 106.
Section 4(f) Programmatic Agreement
Since 2001 ODOT and FHWA have had a Programmatic Agreement for processing Section 4(f)
actions. This agreement was updated in 2012 and lays out the procedures for Processing Non-
Individual Section 4(f) actions in Ohio. This PA details the type of documentation and the detail
necessary for processing of exceptions, de minimis and programmatic 4(f) evaluations. In addition, this
PA establishes the expedited review process by FHWA and the ability of ODOT to assume approval if
FHWA surpasses their review time. This agreement does not delegate the approval of Section 4(f)
actions to ODOT.
Section 6(f) Programmatic Agreement
In 2014, ODOT and FHWA entered into a Programmatic Agreement with National Park Service (NPS)
and Ohio Department of Natural Resources (ODNR) to streamline the process for projects that impact
properties that have been funded with Land & Water Conservation Fund (LWCF) State Assistance
Program monies. This PA identifies project types that would not require coordination with ODNR
and/or NPS and establishes a process that streamlines coordination when it is required. Lastly, the PA
includes flexibility in the appraisal process that allows for ODOT to use FHWA’s process for
appraisals.
Farmland Memorandum of Understanding
In accordance with the federal law, the Farmland Protection Policy Act (FPPA) of 1981 and the first
MOU established in 1984, ODOT is required to consider the adverse effects of all federally funded
transportation projects on farmland preservation and to consider alternative actions that could lessen
those impacts. This updated MOU was signed in 2011 and established parameters that define when
the Farmland Conversion Impact Rating form (FCIR) does not have to be coordinated with the Ohio
office of the USDA Natural Resources Conservation Service (NRCS).
34 | P a g e
Biological Opinion Federally-listed Endangered Indiana bat (Myotis sodalis)
In accordance with section 7 of the Endangered Species Act of 1973, this document transmits the
USFWS biological opinion on ODOT’s statewide transportation program in regards to effects on the
Indian bat. This document identifies the conservation measures, reasonable prudent measures, and
terms and conditions that FHWA and ODOT must follow when conducting projects that may affect the
Indiana bat and its habitat. An extension letter in 2014 was created extending the 2007 PBO through
January 31, 2016.
Memorandum of Agreement For Interagency Coordination For Highway Projects Which Involve Stream
Crossings, Bank Stabilization, and/or Minor Wetland Fills
In 2011 ODOT, ODNR, FHWA and USFWS updated this agreement that expedites the project
development process in terms of NEPA ecological work. This updated agreement explains the
coordination procedures for ODOT projects that involve stream crossings, bank stabilization and/or
minor wetland fills and ensures that all agency concerns are addressed while the data collection effort
and paperwork burden can be reduced. Project specific notification to USFWS and ODNR are included
to ensure that unique resources or concern can be addressed where warranted as well.
This agreement addresses protocols for Section 7 consultation under the Endangered Species Act
(ESA). ODOT regularly acts on behalf of FHWA as the designated non-federal representative under
the federal ESA. ODOT routinely conducts informal consultations with USFWS and works
collaboratively with FHWA on all aspects of the formal consultation process under Section 7 of the
ESA and the Fish and Wildlife Coordination Act consultation process. ODOT and FHWA also
currently have a cooperative agreement with USFWS for a designated Transportation Liaison dedicated
to reviewing ODOT projects.
Coastal Zone Memorandum of Understanding Between ODNR and ODOT
Established in 2005, this agreement between ODOT and ODNR streamlines the Coastal Zone
Consistency Certification process by allowing routine ODOT projects to be considered consistent with
Ohio’s Coastal Management policies under certain conditions. The purpose of this MOU is to establish
responsibilities of ODOT and ODNR in coordinating intrastate review of consistency determinations,
consistency certifications, and federal assistance proposals required by the Coastal Zone Management
Act. This agreement also outlines ODOT projects that are exempt from consistency. It states that these
exempt projects will be coordinated during ODOT’s project development process.
Memorandum of Agreement For Project Coordination On Ohio's State Wild, Scenic and Recreational
Rivers
In 2013 ODOT and ODNR met and discussed coordination procedures and conditions for BMPs for
emergency, minor maintenance and exempt projects within 100 feet of any state designated wild,
scenic or recreational river. The conclusion was made that these projects are minor in nature and have
minimal potential for significant impact and a standard procedure and general conditions exists to
avoid, minimize and/or mitigate significant impacts to designated scenic rivers and jurisdictional water
courses. This MOA is intended to facilitate and enhance coordination of these efforts between ODOT
and ODNR by reducing unnecessary paperwork, by giving the ODOT DEC and ODNR SRM authority
to determine and concur on these projects and ensure that Ohio’s unique resources and all concerns are
35 | P a g e
addressed. In response to this agreement ODOT district offices will be able to complete these types of
projects in a timely fashion and establish policy and procedures to support interdepartmental
cooperation.
In addition to the above agreements, ODOT and FHWA also have the following:
o 4-21-89 Sole Source Aquifer Agreement (Note this agreement is being updated and will be
completed by 12/2015.)
o 12-21-00 Midwest Region MOU on Environmental Streamlining
o 3-6-03 FHWA Programmatic Wetland Finding
o 3-10-14 FHWA/ODOT Tribal Letter Agreement
ODOT has a long history of working cooperatively with these and other federal agencies, as evidenced by a
number of MOUs and memorandum of agreements (MOAs) developed over the years with these agencies.
§773.109 (a)(3)(ii): Changes to be Made for Assumption of
Responsibilities
Over the years, ODOT has been very aggressive to ensure its PA’s, MOU’s, guidance, manuals and trainings are up
to date and go through continuous improvement reviews. These constant updates are designed to further strengthen
its well-developed environmental program. Because of this, further procedural changes are anticipated to be few.
Additional changes could occur as teams gain experience in using the new procedures and note the need for clarity,
adjustment, augmentation, or additional procedures; procedural change would also result when ODOT self-
assessments or FHWA audits identify the need for additional change. The major change that will occur with the
NEPA Assignment Program is ODOT’s assumption of FHWA’s role as environmental decision-maker. The
Assignment Program will enable ODOT to expand its tradition of environmental compliance by ODOT assuming
Federal responsibility and liability for making independent NEPA decisions on federal projects. The Assignment
Program will also allow ODOT to deepen its strong proactive working relationships with its federal and state
resource agency partners and to continue its commitment to work collaboratively with its resource agency partners
to develop and implement innovative environmental mitigation. ODOT’s existing staff experience and mature
environmental compliance program, together with the continuous improvement philosophy to strengthen its program
and staff, will ensure success of the NEPA Assignment Program.
This section describes how ODOT’s existing environmental compliance program has been and will continue to be
modified to implement its new responsibilities under the NEPA Assignment Program. This section also describes
the procedures that ODOT has been recently implementing to ensure that all NEPA documents meet quality
standards, and that all NEPA decisions are compliant, sound, supportable, and made independently. As the need is
identified, additional procedures will be developed to improve the program.
Organization and Procedures under the Assignment Program
As stated earlier, ODOT employs a continuous improvement process to all of its environmental standards and
procedures. This ensures ODOT’s environmental analysis and decision-making under NEPA is always up to date
and reflects the best practices of today. These standards and procedures, combined with ODOT’s expert staff and
consultant resources, will provide appropriate tools and expertise in areas where ODOT has requested assignment of
FHWA's environmental responsibilities. The program will rely on the professional experience and knowledge of
ODOT’s environmental staff in determining the necessary scope and environmental analyses for specific projects,
supported by established standards for environmental documents and technical studies, and a strong QA/QC
program. This approach will strengthen the environmental process ODOT uses for project development and
environmental compliance. ODOT will continue strict adherence to FHWA's public outreach requirements as
36 | P a g e
defined in 23 CFR 771.111 and EIS public and agency collaboration requirements at 23 U.S.C. §139(g).
ODOT will use its procedures, guidance, manuals, and policies in undertaking the NEPA Assignment Program
responsibilities with the expectation that statewide use of those procedures, internal self-assessment and FHWA
audit will identify opportunities to improve those standards and procedures, or staff implementation of those
standards and procedures. Problems that are identified will be accompanied by development of corrective actions
and adoption of recommendations for continuous improvement of ODOT’s environmental program.
Expanded Quality Control Procedures
ODOT believes that its approach to quality is sound, and that its emphasis on internal collaboration among its
district and OES NEPA staff, augmented by environmental technical subject matter experts (SMEs) as needed, will
result in quality environmental documents. ODOT will continue to strengthen its reliance on a reinvigorated quality
assurance emphasis under the NEPA Assignment Program that will further support development of NEPA-
compliant environmental documents and decisions with quality built in. ODOT is in the process of developing
procedures to fully document its QA/QC procedures. Updates, modifications, and expansions of its QA/QC
procedures will occur as ODOT determines necessary for the successful implementation of the program. Team
collaboration in development of the environmental document will also serve as a de facto mentoring program, with
more experienced team members serving to build the knowledge, skills and abilities of less experienced team
members as they work together to produce the environmental document. This collaboration creates a form of
program-level quality assurance. Quality assurance occurs at the project level as well as the program level. Quality
control elements added to this quality assurance model further reduce the opportunity for error.
Quality assurance and quality control will occur at several steps during the development of all NEPA Assignment
Program environmental documents. Quality assurance begins when the project environmental team initially
collaborates in the development of the project scope. This is consistent with the current process as shown in Figure 8
below. The scope identifies mutual district and OES expectations for the project class of action, environmental
analysis, need for technical studies and extent of technical study review needed. Technical studies are then prepared
following established standards and the agreement for studies made in the project scope. The first QC step takes
place when key technical studies undergo QC by an OES SME, as determined appropriate by the project team, prior
to their approval. Once technical analyses and studies are completed, the project environmental team will lead
development of the environmental document following established document standards. Because of increased
reliance on development of technical studies as part of the environmental compliance process, rather than
comprehensively reporting studies directly into the environmental document, the environmental document itself may
briefly summarize studies and focus on the information necessary to support an informed decision.
37 | P a g e
Figure 8. Current Environmental Compliance Process for EAs and EISs
The process for environmental compliance for EA and EIS documents under NEPA Assignment is very similar to
what was shown in Figure 8. Figure 9 shows the process changes necessary for this program. The primary
difference is removal of reviews by FHWA and an increased oversight of technical studies and early reviews by
OES. In addition, a legal review as added prior to circulation of an EIS and the required legal sufficiency review for
the FEIS and Individual Section 4(f).
Per our PDP and CE PA, if the document is a higher level CE (per ODOT’s CE guidance/manual), an EA or EIS,
then the document is first reviewed at the District level, then submitted to an OES project coordinator. At this level,
the document goes through a detailed review by the project team and SME at OES and is recommended to the
Administrator of OES for approval. This review also includes a review by the ODOT-OES attorney. Lastly, the
document is approved only after it again has been reviewed and determined that the environmental document
presents all issues required to be addressed and necessary participating agency coordination has occurred. The OES
reviews ensure that the environmental document is NEPA compliant; internally consistent; consistent with the
supporting technical studies and with the project design concept and scope as described in the local or statewide
plan; and meets the requirements of federal and state environmental statute, regulation, and policy. OES’
Environmental Administrator is responsible for ensuring that EAs, DEIS and FEIS/ROD documents undergo legal
38 | P a g e
sufficiency review that will be conducted by the ODOT-OES attorney or ODOT’s outside environmental counsel or
a combination of these. The legal sufficiency determination occurs after both District environmental staff and OES
SME’s have completed their review and the OES Environmental Administrator has determined that the document is
ready for legal sufficiency review. The final document will only be signed after the legal sufficiency review is
complete. The FONSI or FEIS/ROD is developed by OES staff and submitted to the ODOT-OES attorney or
ODOT’s outside environmental counsel or a combination of these for review. Following this final review, ODOT’s
Deputy Director over the Division of Planning will issue the final decision.
All non-Individual Section 4(f) processing options will follow a similar procedure involving review by appropriate
District environmental staff and OES SMEs. Once complete, the OES Assistant Environmental Administrator
(AEA) will sign the final document. In addition, individual Section 4(f) evaluations will be submitted to the ODOT-
OES attorney or ODOT’s outside environmental counsel, for legal sufficiency review. Individual Section 4(f)
evaluations will handled a little different in that they will be signed by the OES Environmental Administrator after
legal sufficiency is determined.
Figure 9. Process for Environmental Compliance for EAs and EISs w/NEPA Assignment
ODOT’s Deputy Director over the Division of Planning will sign EAs and DEIS, making them available for public
review and comment. In addition, the ODOT Planning Deputy Director will sign all FONSIs and FEIS/RODs. If the
ODOT Planning Deputy Director is out of the office for an extended period of time (surgery, etc.), at the written
discretion of the ODOT Director, signature authority for FONSIs and FEIS/RODs may be delegated to the
Administrator of ODOT’s OES or the Department’s Assistant Director until the ODOT Planning Deputy Director
returns.
The process is different for project activities that qualify as CEs. Pursuant to 23 CFR 771.117 (a) and (b), the district
39 | P a g e
will document its decision regarding the need for studies to confirm that the project meets the criteria for a CE. If the
document is a lower level CE per 23 CFR 771.117(c) and ODOT’s CE PA, the District environmental staff will
complete their review of the document and submit it for review and approval by the District Environmental
Coordinator. At this point, the review is concluded with approval of the C1 once the DEC has determined that the
CE meets all issues required to be address per ODOT’s CE PA. If studies are needed, those studies are identified in
the project scope. After completion of all tasks identified in the scope, the district determines whether the results of
studies confirm or invalidate the proposed classification. If the classification is valid, the CE2 is approved by the
DEC. Approval is then electronically documented in the project file. If the classification is invalid, the district
reclassifies the project and proceeds with environmental approval as required under the new classification.
If the project is a higher level CE per 23 CFR 771.117(d) and ODOT’s CE PA, the district environmental staff and
DEC produces the CE documentation similar to the process discussed above, however, upon their review and
acceptance that the project meets the requirement of a higher level CE (D2 or D3), it is transmitted to ODOT’s OES
for review and processing. The DEC has signature authority for D1 CEs. The ODOT OES SME’s and project
coordinator then review the determination and project file to verify that the project meets the criteria for categorical
exclusion. Following this review, the CE is forwarded to the ODOT OES AEA for approval and signature. The
approval is electronically documented in CE On-line system. ODOT’s CE PA is included in Appendix E.
Projects with a designated local government sponsor will follow the same basic approval processes as ODOT-
sponsored projects. When environmental documents are submitted, they will be subject to the same QA/QC reviews
performed on ODOT projects. They will also be subject to the same legal reviews (if applicable), reviews at the
District or Central Office level, legal sufficiency review (if applicable) and the same approval process described
above.
Projects that meet the intent of 23 CFR 771.117(c) will conclude with the District Environmental staff completion of
the form and the DEC or his designee making the final signature. For projects meeting the intent of 23 CFR 771.117(d),
reviews are performed by ODOT OES SME’s and a peer review will be conducted by an individual not involved with
completing the CE and the final approval will be made by the DEC for D1 CE’s and the ODOT OES AEA for D2 and
D3 CEs. Note: For projects that ae not part of the NEPA Assignment Program, D3 CEs will be reviewed and approved
by FHWA.
Independent Environmental Decision-Making
ODOT’s organization supports environmental decision-making independent of administrative political or
performance-based pressure. Approval for all environmental documents prepared under the NEPA Assignment
Program will be independent from project design decisions but usually performed in concurrence. The
environmental team will collaborate with project designers throughout the project development process to avoid and
minimize impacts to environmental resources of concern. Districts and OES report to the ODOT administration
through different chains of command (see organization chart at Figure I). The districts report to the District Deputy
Director, while OES reports to the Deputy Director of the Planning Division. These chains of command meet at the
Assistant Director of Transportation Policy positon. Project design decisions are the responsibility of ODOT districts
under the authority of the District Deputy Director and Planning and Engineering Administrator. Projects qualifying
as categorically excluded from the requirement to prepare an EA or EIS will be confirmed as CEs and approved by
district environmental staff and or ODOT’s OES (depending upon level of the CE). Because these projects do not
result in significant impacts, these decisions do not require independent review prior to approval. Nevertheless, CE
decisions are subject to ODOT QA that will include performance review by OES. All formal environmental
documents- EISs and EAs, which are produced by the districts, will be independently reviewed by ODOT OES prior
to their approval. OES staff will participate on environmental project teams to provide QA throughout the
environmental document development process, but responsibility for producing the environmental document
remains with the district, while responsibility for approval is retained at OES. OES will also ensure legal
sufficiency reviews are performed by the ODOT-OES attorney or by legal consultants that they oversee and manage
40 | P a g e
as ODOT will be responsible for any future federal lawsuits.
Defining the Class of Action
The class of action for all projects is proposed by the project sponsor during scoping at project initiation. The ODOT
District environmental staff reviews the proposed class of action as part of the overall scope review process. For
projects that are classified as EA or EIS level projects, the District will consult with OES and OES will ensure that
the proposed class of action is appropriate. In situations where the project scope changes or anticipated impacts
change, the class of action will be reconsidered.
Consultation and Coordination with Resource Agencies
Coordination with resource agencies plays a vital role in project planning and environmental development of
proposed projects. ODOT currently performs the primary role in interagency coordination through agreements with
the FHWA and various resource agencies. ODOT maintains a multi-disciplinary staff that works effectively and
proactively with state and federal environmental resource and regulatory agencies. Under current ODOT procedures,
the OES SMEs are responsible for interagency coordination during project planning and development. Under the
Assignment Program, ODOT is committed to continue working positively and collaboratively with its federal and
state resource agency partners.
This positive, collaborative approach with agency partners will also be evident as ODOT assumes responsibility for
NEPA scoping on EIS projects. ODOT will meet the NEPA scoping requirements of the CEQ NEPA regulations
(40 CFR 1501.7) and of FHWA (23 CFR 771.123(b)), as well as the early consultation and coordination plan
requirements articulated in 23 U.S.C. 139. Per ODOT and FHWA’s Section 1305 procedures, ODOT will request
agencies, as appropriate, to become cooperating agencies, and will identify agencies to serve as participating
agencies. All federal, state, tribal, regional and local government agencies that may have an interest in the project
will be invited to be participating agencies. Participating agencies and the public will be given an opportunity for
input in the development of the purpose and need and the range of alternatives, and throughout the project
development process as appropriate. ODOT will also collaborate with the cooperating and participating agencies
during the environmental study process on methodology used and level of detail required for the analysis of project
alternatives.
ODOT biologists or consultants supervised by ODOT OES currently prepare Section 7 biological evaluations and
biological assessments. ODOT district environmental staff and OES perform informal consultation responsibilities
with the USFWS on biological evaluations and essential fish habitat assessments. Under the NEPA Assignment
Program, OES will take on the FHWA role of formal consultation with USFWS under Section 7 of the ESA. Under
the NEPA Assignment Program, ODOT will be responsible for informal and formal ESA consultation and for
compliance and oversight in general. Formal consultation correspondence and documentation prepared under the
NEPA Assignment Program will be submitted to the agencies from OES, and will specify that consultation is being
requested pursuant to 23 U.S.C. 327.
In addition, OES works collaboratively with USFWS to develop conservation strategies to ensure that projects will
not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of
critical habitat or essential fish habitat. ODOT also consults with the USFWS on projects which require review
under the Fish and Wildlife Coordination Act (FWCA). Under the Assignment Program, ODOT is requesting to
assume responsibility for ESA compliance and will continue FWCA coordination, informal ESA consultation
responsibilities and assume responsibility for formal Section 7 consultation on behalf of the FHWA.
Under a Section 106 PA with the Ohio Historic Preservation Office (SHPO), Advisory Council on Historic
Preservation (ACHP), and FHWA, ODOT is currently entrusted with responsibility for formal consultation with the
SHPO on Section 106 issues. The PA provides for internal ODOT review and approval for projects not involving
adverse effects to eligible resources under Section 106. For projects involving adverse effects to eligible resources,
41 | P a g e
ODOT consults with the SHPO and other consulting parties to resolve adverse effects. The PA provides for FHWA
and ACHP participation at the request of the public, consulting parties as defined in 36 CFR 800.2 and at the request
of FHWA or the ACHP. Under the Assignment Program, ODOT is requesting to assume responsibility for
compliance with Section 106 of the National Historic Preservation Act and will continue coordination with the
SHPO and ACHP on behalf of the FHWA regarding cultural resource issues through formal assumption of Section
106 responsibility.
ODOT is currently entrusted with responsibility for coordination with multiple Tribal Governments through a letter
agreement with the Tribal government and FHWA. FHWA cannot assign its government-togovernment Tribal
consultation responsibilities to ODOT under the NEPA Assignment Program, but ODOT would continue to use the
procedures outlined in the letter agreement to coordinate the meaningful input of Native American tribes with
interests in Ohio in the Section 106 process. If, at any time, a tribe requests FHWA government-to-government
consultation, then that request will be honored and FHWA will be requested to actively participate.
ODOT does not have a formal PA with the U.S. Army Corps of Engineers (USACE) nor the U.S. Environmental
Protection Agency (USEPA), but ODOT currently manages permit submittals when Section 10 and Section 404
permits are required. ODOT administers three mitigation banking instruments for use on projects that impact waters
of the U.S., and follows USACE and USEPA expedited coordination and permitting procedures for emergency
situations. Projects requiring an individual Section 404 permit are required to comply with the Section 404(b)(l)
guidelines (40 CFR, Part 230). ODOT will continue to follow Section 404(b)(l) guidelines in analyzing project
alternatives and determining the least environmentally damaging practicable alternative while working with
USACE and USEPA to obtain individual permits. Under the NEPA Assignment Program, ODOT requests to
assume FHWA’s responsibility as the lead federal agency to coordinate with USACE and USEPA and will continue
to perform these coordination and permitting functions. ODOT will be considered the "Federal Agency" on actions
under the NEPA Assignment Program.
ODOT currently coordinates with the U.S. Coast Guard regarding projects within navigable waterways subject to
the General Bridge Act of 1946, formerly known as Section 9 of the Rivers and Harbors Act of 1899. In addition,
ODOT will ensure that the recently executed Memorandum of Understand on the coordination of FHWA and Coast
Guard environmental review responsibility for projects needing bridge permits is followed.
ODOT coordinates storm water quality and hazardous material issues with the Ohio Environmental Protection
Agency (OEPA). Although OES reviews and approves air quality analyses, FHWA would retain transportation
conformity determinations for Assignment Program projects.
Although OES reviews and approves air quality analyses, FHWA would retain transportation conformity
determinations for Assignment Program projects. ODOT coordinates transportation air quality conformity
determinations with the US Environmental Protection Agency (USEPA) in accordance with USEPA’s transportation
conformity program. Transportation conformity is a Clean Air Act requirement that serves as a bridge to connect air
quality and transportation planning activities. ODOT currently coordinates projects with USEPA that are in PM2.5
nonattainment areas and are not exempt under 40CFR93.126. During the coordination, ODOT seeks concurrence
from USEPA, as well as OEPA and FHWA, on whether a PM2.5 hotspot analysis is required or not for these
projects. If a PM2.5 hotspot analysis is required, ODOT initiates interagency consultation with USEPA, OEPA, and
FHWA regarding the details and requirements of the hotspot analysis and works with the agencies to conduct the
required public involvement and achieve a project level conformity determination.
ODOT is actively involved in coordinating with the U.S. Department of Interior, and, as appropriate, other federal
agencies, on Section 4(f) issues. When necessary and to ensure compliance with the Farmland Protection Policy Act
(FPPA), ODOT completes coordination with the Natural Resource Conservation Service (N RCS). ODOT also is
requesting to assume responsibilities for compliance with these acts and would continue to perform these
coordination functions under the Assignment Program.
42 | P a g e
Issue Identification and Conflict Resolution Procedures
Process with External Agencies
ODOT has long had a practice of proactive engagement with its resource agency partners. ODOT strives to be
transparent in identifying impacts, working with agencies on appropriate mitigation to offset the impacts of its
projects, and following through on its commitments. The department seeks to understand the basis for resource
agency requirements and to diligently meet those requirements. Following this forthright approach, ODOT is largely
successful in avoiding conflicts with external agencies. ODOT expects to continue this general approach under the
NEPA Assignment Program, and will assume FHWA's role in resolving conflicts with external agencies without
FHWA involvement. In this role, ODOT will continue to be diligent in resource agency engagement, particularly
with cooperating agencies and those agencies designated as participating agencies, following the requirements and
spirit of 23 U.S.C. 139(h). Where issues arise that create conflict between agencies, ODOT will be committed to
forthright conflict resolution and good faith efforts to address concerns of the other party. Because of ODOT’s
experience, expertise, and current level of involvement in consultations, its existing resources will be adequate to
assume FHWA’s responsibilities for resolving issues with external agencies.
ODOT’s long history of working cooperatively with its federal and state partners and with Tribal Governments is
evidenced by the numerous PAs, MOUs and MOAs developed over the years to entrust certain responsibilities to
ODOT or to improve coordination between ODOT and federal and state resource agencies. Under the Assignment
Program MOU process for handling PAs, ODOT could assume the FHWA role in the PA if acceptable to the
resource agency involved. The areas below specify procedures for resolving conflicts with external agencies. These
procedures are recommended as part of the NEPA Assumption program.
Section 106
• If SHPO or any other consulting party, objects to any plans or proposed actions provided by ODOT,
the general dispute resolution process would require that when ODOT and SHPO cannot concur on an
eligibility or effect determination or if a consulting party does not concur with ODOT and/or SHPO on
a finding, then they will consult the ACHP to obtain recommendations for consideration for a final
decision. ODOT and SHPO are developing operating guidelines on how issues will be elevated and the
formal process of conflict resolution. This document will be in place by the end of 2015 and will be
posted on ODOT-OES’ web site for public access. This document will spell out the elevation
procedures within each agency and then upon continued dispute, the issue is elevated for consultation
with ACHP. The goal of this document is to ensure all parties know who to contact with concerns and
how to get issues resolved at the lowest levels. This guidance will also assist consulting parties to
better understand how to raise issues per the Section 106 process under NEPA Assignment.
Endangered Species Act, Section 7 Determinations and Coordination
• If a difference between staff arises at any point in the process, the issue will be referred to the next higher
level for review and decision within 10 working days. If the Administrator of OES and the appropriate
USFWS Administrator are unable to agree on a decision, ODOT will initiate formal consultation and will
assume FHWA’s role in the formal consultation process. ODOT and USFWS are working to develop
operating guidelines on how to issues will be elevated and the formal process of conflict resolution. This
guidelines will be in place by the end of 2015 and will be posted on ODOT-OES’ web site.
43 | P a g e
Native American Tribal Coordination
• If the Tribes object to ODOT findings, eligibility determinations, effect determinations, or treatment
plans, ODOT-OES shall review the documentation provided by the Tribe to support its objection and
make a reasoned response to the Tribe.
• If the objection is in response to a finding of no historic properties, eligibility determination or effect
determination, ODOT-OES will consult with the Tribe or the Keeper of the Register to resolve the
objection and notify all consulting parties of the outcome.
• If the objection is in response to a treatment plan, then ODOT-OES will review the documentation and
will consult with the Tribe or the ACHP to resolve the objection and notify all consulting parties of the
outcome.
• For emergency discoveries, ODOT will follow appropriate emergency discovery guidelines, which
include notifying the culturally associated Tribe, and determining if any additional investigations of the
site are needed. If the Tribe objects to additional investigations, ODOTOES shall make a reasoned
response to the Tribe.
• Under the NEPA Assignment Program, if ODOT and a tribe are unable to agree, the parties will follow
the dispute resolution processes of ODOT’s Programmatic Agreement with FHWA, the Ohio SHPO and
the ACHP for Section 106 compliance, unless the tribe requests government-togovernment consultation
with FHWA.
• ODOT will be re-evaluating our 2005 Tribal operating procedures and coordinating with the tribes to
update this document during 2015. Once complete, the Tribal operating procedures will be posted to
ODOT OES’ Web site.
Where the issue needing resolution does not involve one of the regulatory processes described above, ODOT will
implement the Issue Identification and Resolution Process under 23 U.S.C. 139(h), assuming FHWA’s role. The
regulation provides a formal process for resolving major issues that may delay or result in denial of a required
approval or permit for a project. This process may be invoked by the project sponsor or the Governor of the State
and requires that the FHWA Division Administrator, heads of the lead agencies and affected participating agencies,
and the project sponsor meet to resolve issues. Under the NEPA Assignment Program, the Director of ODOT would
assume the FHWA Division Administrator role. Issues identified for resolution or elevation through 23 U.S.C.
139(h) would be logistically coordinated with the Office of the Secretary of Transportation at the federal
Department of Transportation.
Record Keeping and Retention
ODOT intends to use its On-Line CE System as the environmental file system of record for NEPA Assignment
Program projects.
The ODOT record retention policy is established by ODOT’s Department of Administrative Services (DAS). For
documents pertaining to ODOT’s discharge of responsibilities under the NEPA Assignment Program, ODOT will
comply with the requirements of FHWA Records Disposition Manual (Field Offices) Chapter 4, FHWA Order No.
1324.1B, issued July 29, 2013.
ODOT will maintain its project and administrative files pertaining to its NEPA Assignment responsibilities, as
required by the program. Because ODOT’s filing system is electronic, files will be continuously available for
FHWA to review. FHWA as on-demand access to this system at all times. These files will include, but are not
limited to, all letters and comments received from governmental agencies, the public, and others relative to ODOT’s
NEPA Assignment responsibilities. Project files will include the NEPA document, technical reports and studies,
consultation/coordination correspondence, and public comments and responses. E-mails that support project
decision-making, reflect deliberation, and demonstrate a "hard look" under NEPA will be retained as part of the
project file. Draft documents will be kept until a final version is approved. Once a document is made final, all
44 | P a g e
earlier versions or drafts are considered to have no administrative value and will be discarded. Any attorney-client
privileged documents will be kept in a separate file, and will be made available upon request to the ODOT and
FHWA legal teams.
Expanded Internal Compliance and Self-Assessment Reviews
As required, ODOT will periodically conduct self-assessments to determine the effectiveness of its standards,
guidance, and procedures under the NEPA Assignment Program and its staff’s adherence to the NEPA Assignment
MOU, and to ODOT’s established standards and procedures. Performance reviews will be on-going, with periodic
self-assessment reports provided to FHWA. In addition to problem identification, self-assessments will be used to
evaluate root causes and to assess whether specific problems are systemic, confined to specific areas of the state or
to specific individuals. ODOT will use self-assessments to identify areas that are working well, as well as areas that
need improvement; make specific recommendations to improve adherence to standards and procedures; assess the
need for corrective action as well as implement necessary corrective actions; evaluate the improvements achieved
from previous corrective actions; and re-evaluate previous program areas where corrective actions have been
implemented. Self-assessments will be conducted using a variety of monitoring tools, such as reviews of files and
the data management system, interviews of ODOT and resource agency staff, and distribution of questionnaires.
These self-assessments will gauge the success of the NEPA Assignment Program.
It is anticipated that certain elements of the NEPA Assignment Program will be evaluated with each self-assessment
(e.g., record-keeping, documented compliance with federal requirements, environmental approval timeframes),
while other self-assessment components will be determined for each self-assessment based on input from the
performance review team, OES management/project management, district environmental leads and ODOT project
managers.
The ODOT OES Administrator will be responsible for overseeing ODOT’s implementation of the NEPA
Assignment Program, ensuring its success, and reporting on its performance to FHWA. The Director of ODOT is
the highest-ranking official at ODOT and is committed to the success of the NEPA Assignment Program, as are the
entire ODOT administration. ODOT’s OES Assistant Environmental Administrator over the Policy/Cultural
Resource Section will be responsible for day-to-day management of the program and OES’ NEPA Assignment
Coordinator will serve as liaison to the FHWA Assignment Program audit team.
Performance Measures to Assess the NEPA Assignment Program
ODOT will monitor a variety of performance measures as part of its self-assessment program to evaluate
performance in assuming NEPA Assignment Program responsibilities. These measures include the following:
• Compliance with NEPA, FHWA NEPA regulations, and other federal environmental statutes and
regulations:
• Maintain documented compliance with requirements of all applicable Federal statutes and regulations for
which responsibility is assumed.
Quality Control and Assurance for NEPA decisions:
• Maintain internal quality control and assurance measures and processes, including a record of:
• Completion of legal sufficiency reviews by the ODOT-OES attorney or by ODOT’s outside
environmental counsel; and
• Compliance with ODOT’s environmental document content standards and procedures, including those
related to QA/QC.
Monitor relationships with agencies and the general public:
45 | P a g e
• Assess change in communication among ODOT, federal and state resource agencies, and the public
resulting from assumption of responsibilities under this MOU.
• Maintain effective responsiveness to substantive comments received from the public, agencies and interest
groups on NEPA documents.
Increased efficiency in completion of the NEPA process:
• Track completion time of environmental document approvals and compare to national averages.
Training to be Provided to Implement the Assignment Program
ODOT is committed to maintaining a quality training program for its employees and environmental consultant staff.
Training is developed to meet the identified needs and is modified over time as necessary to meet evolving staff
needs. ODOT’s existing environmental training program provides training courses that support development of the
knowledge, skills, and abilities of its environmental staff necessary to meet state and federal environmental
requirements. ODOT’s environmental staff are held to the same pre-qualification standards as the consultants.
District environmental staff are required to take the same training that consultants take and the individual who holds
the District Environmental Coordinator position is designated only with the support of ODOT-OES’ Environmental
Administrator. All employees are required to maintain their training and all technical classes must be retaken every
five years. Lastly, all environmental staff are expected to attend continued environmental trainings that occur twice
yearly (District Environmental Coordinators training and Environmental Update Meetings). These meeting provide
biannual updates of the latest environmental issues, trends and changes. As ODOT prepares to enter the NEPA
Assignment Program, training on the MOU and NEPA Assignment program requirements will be necessary.
As part of development of the annual training plan and during self-assessment, ODOT expects to evaluate its
existing training to determine if it is consistent with the assignment program and the current ODOT approach to the
environmental process, revise training as needed, and develop new training to support the assignment. ODOT is
committed to augmenting its current training program in support of the NEPA Assignment Program.
To ensure that ODOT environmental staff have the knowledge and skills necessary to meet their new responsibilities
under the Assignment Program, ODOT will hold training on the NEPA Assignment MOU and its key provisions for
its environmental staff that will be most involved in implementing the NEPA Assignment Program prior to the
effective date of the MOU. Attendees will include district environmental staff and ODOT-OES environmental staff.
Training topics will include the content of the MOU and application, revised documentation requirements for CEs,
environmental document review procedures, QA/QC protocols, the self-assessment process, FHWA regulations, the
audit process and the current ODOT environmental rules. A critical component of the training program will be
recurring QA/QC training. ODOT will prepare and submit regular NEPA Assignment Program training plans as
required by the NEPA Assignment Program MOU.
In addition, OES and districts will work with the ODOT Office of Local Programs to provide training to local
governments and their consultants on changes to environmental procedures under the NEPA Assignment Program,
including environmental document quality control procedures and record keeping requirements. Finally, additional
training to build awareness of NEPA Assignment issues for management personnel, project managers and project
design engineers.
FHWA’s legal staff has provided legal sufficiency training to ODOT’s legal staff, and key environmental technical
staff. The ODOT team will continue to seek additional training and instruction from FHWA on legal sufficiency.
While not training per se, regular statewide hot topics discussions and updates will be held for the program to
regularly share important NEPA Assignment Program information, communicate Assignment Program issues and
their resolution, and respond to questions.
46 | P a g e
§773.109 (a)(3)(iii): Legal Sufficiency
The ODOT-OES attorney will conduct legal sufficiency reviews of the combined Final Environmental Impact
Statements (FEISs)/Record of Decisions (RODs) and Individual Section 4(f) evaluations which are the only
document types for which FHWA is required to conduct legal sufficiency reviews under Federal regulation (23 CFR
771.125(b) and 23 CFR 774.7(d)). The ODOT-OES attorney will also conduct a legal sufficiency review of Federal
Register Notices for limitation of claims pursuant to 23 U.S.C. 139 as FHWA currently has a policy that requires a
legal sufficiency review of all statute of limitation (SOL) notices. These reviews will be conducted by the ODOT-
OES attorney or by ODOT’s outside environmental counsel which are hired and supervised by ODOT-OES’
attorney. The primary goal of this review will be to assess the document from the perspective of legal standards,
litigation risk and legal defensibility. ODOT intends to use the following process:
1. OES will submit the draft FEIS, Individual 4(f) evaluation or SOL to the ODOT-OES attorney.
2. The ODOT-OES attorney will assign the document to ODOT’s outside environmental counsel for review,
if they feel that the project is of such a complex level that additional legal assistance is required.
3. The ODOT-OES attorney will prepare and submit to OES’ Environmental Administrator written
comments/suggestions to improve the document's legal defensibility (these comments would be protected
by the attorney client privilege and would not be shared outside of ODOT and FHWA).
4. The ODOT-OES attorney will be available to discuss with OES staff the resolution of
comments/suggestions.
5. Once the ODOT-OES attorney is satisfied that OES staff has addressed his or her comments/suggestions
to the maximum extent reasonably practicable, the reviewing attorney will provide the OES
Environmental Administrator with written documentation that the legal sufficiency review is complete.
6. OES will not finalize an FEIS, the individual 4(f) evaluation or SOL before receiving written
documentation that the legal sufficiency review is complete.
Should issues of national precedent arise in legal sufficiency review, the ODOT-OES attorney would coordinate
with FHWA attorneys on the underlying policy issue.
§773.109 (a)(3)(iv): Prior Concurrence For selected projects, "prior concurrence" pursuant to 23 CFR 771.125(c), will be obtained, before proceeding with
key approvals under NEPA. Prior concurrence will come from ODOT’s OES Environmental Administrator, after
consulting with the ODOT’s legal staff as necessary, to ensure that the project and environmental document in
question are acceptable from a policy and program perspective. Prior concurrence may apply to ODOT approvals of
draft or final EISs. Projects that require prior concurrence will be decided on a case-by-case basis, based on input
from the districts and OES managers, and may include projects that meet one or more of the following criteria:
• Impacts of unusual magnitude,
• High level of controversy,
• Major unresolved issues,
• Emerging or national policy issues,
47 | P a g e
• Issues for which the districts seek policy assistance.
For projects that are believed by ODOT to involve a constructive use under Section 4(f) of the U.S. Department of
Transportation Act, ODOT will coordinate with FHWA on the underlying policy issue before making a final
determination of a Section 4(f) constructive use. Section 4(f) constructive use evaluations will undergo legal review
before they are signed by the ODOT-OES Environmental Administrator.
Prior concurrence will apply to projects as determined by the ODOT-OES Environmental Administrator. In
completing the prior concurrence review, the ODOT-OES Environmental Administrator or designee will personally
review the elements of the EIS at issue in the prior concurrence review and seek advice and input, as appropriate,
from technical SMEs and the OCC before the EIS that is the subject of prior concurrence is approved by the ODOT-
OES Environmental Administrator.
§773.109 (a)(3)(v): Project Delivery Methods ODOT may consider a variety of delivery mechanisms for public-private initiatives. A public-private agreement
may provide for any combination of planning, acquisition, financing, development, design, construction,
reconstruction, replacement, improvement, maintenance, management, repair, leasing, or operation of a
transportation facility.
Possible types of agreements for public-private initiatives include:
Design-Build-Maintain Agreements;
Design-Build-Operate-Maintain Agreements;
Design-Build-Finance Agreements
Design-Build-Finance-Operate Agreements;
Design-Build-Finance-Operate-Maintain Agreements;
Operation and Maintenance Agreements;
Concession Agreements; and
Other agreements that best serve the public interest in context of the particular project.
ODOT will consider the appropriate delivery mechanism for each public-private initiative on a case-by-case basis,
considering the nature and status of the project, risk factors applicable to the project, the project schedule, available
funding, project goals, and other project-specific factors. The type of contract will be specified in the procurement
solicitation documents for the public-private initiative. For design-build projects, ODOT will ensure the
requirements outlined in 23 CFR part 636 are met, which include those imposed to protect the objectivity and
integrity of the NEPA process.
ODOT’s Division of Innovative Delivery will consider the appropriate delivery mechanism for each public-private
initiative on a case-by-case basis, considering the nature and status of the project, risk factors applicable to the
project, the project schedule, available funding, project goals, and other project-specific factors. The type of contract
will be specified in the procurement solicitation documents for the public-private initiative.
Following a successful procurement, ODOT may also enter into a pre-development agreement with a private entity
before entering into the definitive agreement for the development, financing, operation, maintenance, lease, or
otherwise of the transportation facility. Successful completion of certain objectives of the pre-development
agreement may be a condition to executing or effectuating the definitive agreement for the transportation facility.
The pre-development agreement may also provide different pricing or other terms as appropriate for the specific
48 | P a g e
public-private initiative.
ODOT’s Division of Innovative Delivery coordinates closely with OES to ensure all NEPA and permit elements are
fully addressed for any project that uses alternative delivery methods. Per 23 CFR 771.113, NEPA must be cleared
prior to authorization for any construction activities. This requirement holds true even with alternative project
delivery methods. ODOT’s process generally ensures that NEPA is approved prior to entering into procurement for
public-private initiatives, however, the flexibility exists for ODOT to include in the public-private procurement that
the private entity coordinate with ODOT to clear NEPA after procurement, provided there is language that does not
authorize construction activities until NEPA has been cleared.
§773.109 (a)(4)(i): Additional Staff and Training Required ODOT currently employs approximately 60 staff that are responsible for some aspect of environmental compliance,
and believes the overall size of its existing environmental staff is sufficient to handle the responsibilities it is
assuming under the NEPA Assignment Program and the scale of projects it expects to assume. With its staff, ODOT
planned over 1,000 environmental documents/determinations in FY 2013 and over 900 actions in FY 2014. For FY
2015, ODOT-OES expects slightly fewer environmental actions to occur. This downward trend reflects both a
general reduction in available funding for transportation projects as well as a shift in the use of available funds
towards maintaining the existing system rather than expanding the system.
If there are increases in funding or changes in work needs, ODOT’s staff is heavily trained and most are able to
address multiple disciplines within the environmental area. ODOT would be able to reassign staff to address areas
that have a peak workload as needed. In addition, ODOT has many on-call contracts with environmental consultants
who can be brought in as needed to address any peaks as well.
ODOT anticipates the additional of 1.5 FTE staff to ODOT’s OES to manage the NEPA Assignment Program. The
addition of this staff will focus on the overall management of the program including the self-audits, QA/QC
functions, the formal audits, environmental commitment tracking and overall problem solving and process tracking.
In addition, ODOT-OES is adding one environmental attorney to manage required legal reviews associated with the
NEPA Assignment Program and for normal ODOT environmental needs. This person will manage the legal reviews
needed for this program and decide when additional special environmental legal expertise is needed. This person
will also oversee and manage any additional reviews performed by the Office of Chief Counsel or special legal
consultants. Legal sufficiency reviews will be performed by the ODOT-OES attorney, or when needed due to
complexity, by one or more attorneys from ODOT’s Office of Chief Counsel (OCC) or our outside environmental
counsel.
Lastly, ODOT has one District office (ODOT District 7) that only has one environmental staff person. To ensure
there is a separation between staff who write and ensuring we have other staff who approve the documents, this
District will either rely on additional staff (fully environmentally trained) to perform these reviews or they will
partner with a sister District to conduct reviews or assist in preparing the environmental documents. D7 will use this
additional peer review on all D1 CE projects. All of ODOT’s other District Offices have multiple environmental
staff and this ensures that staff who prepare the environmental documents aren’t always the ones who also approve
this. Certainly for the smallest of projects, we may have the staff who develop the document are also the ones who
approve them. This is fine for the smallest projects, but for more complex projects (D1, D2 and D3 CE projects)
have more than one person in the review chain. This ensures that the person who prepared the document, isn’t the
one who approves it.
In the future, additional staff may be added in the districts to handle additional environmental workload that may
develop -from the NEPA Assignment Program as well as other sources-at the discretion of the District Deputy
Director. ODOT’s experienced environmental staff that will contribute to assignment-related functions are
49 | P a g e
distributed around the state, in both districts and OES, and will bring a wide range of perspectives and experience to
the NEPA Assignment Program.
ODOT has identified several key Assignment Program roles, as identified elsewhere in this application. Notable
among them are the ODOT’s OES Administrator and the Assistant Environmental Administrator over the
Policy/Cultural Resource Section will be responsible for overseeing ODOT’s implementation of the NEPA
Assignment Program, ensuring its success, and reporting on its performance to FHWA. OES’ NEPA Assignment
Program Manager (within the Policy Section) will be responsible for day-to-day management of the program and
will serve as liaison to the FHWA Assignment Program audit team. This is a new position to ODOT OES and this
person will manage the ODOT self-assessments and performance reviews and coordinate staff development and
program development as a whole. ODOT OES will also be adding one additional position to assist the NEPA
Assignment Coordinator as needed in the audit and self-assessment program. This position is a new position, but
will have additional work duties beyond NEPA Assignment. Lastly, the ODOT-OES Assistant Environmental
Administrator over Ecological/Permits/ESA will responsible for Section 7 consultation.
§773.109 (a)(4)(ii): Changes to the Organizational Structure ODOT does not anticipate any changes in the organization of district functions. District project managers are
responsible for ensuring that the environmental process is completed. Environmental staff will continue to support
project development. District environmental staff will continue to rely on other districts and OES to provide
expertise that the district does not have. This structure has been proven effective.
ODOT does not anticipate further organizational change, although roles and responsibilities may be shifted among
OES organizational units for the successful implementation of the Assignment Program or as identified as through
the NEPA Assignment Program’s self-assessment and FHWA audit process.
ODOT will continue to use the existing organization for legal sufficiency review to the maximum extent possible,
but specialized outside legal counsel may be required from time to time. This structure has been effective.
ODOT will use the NEPA Assignment Program’s self-assessment and FHWA audit process to identify any changes
that may be needed in organizational structure.
§773.109 (a)(4)(iii): Use of Outside Consultants for the Assignment
Program
There will be no change in ODOT’s general approach to using consultants as a result of the NEPA Assignment
Program. OES is responsible for the review of environmental documents prepared by districts as well as consultants
under contract to ODOT. Following completion of this review, OES either approves these documents or
recommends them for approval. Both districts and OES have the authority to hire consultants. Consultants may be
used for environmental analysis, technical studies, environmental document preparation, review services,
administrative record development, and general staff support.
Currently, consultant services fluctuate in proportion to the annual ODOT workload. The level of consultant services
used to augment ODOT’s project development staff is based on legislative authority and project delivery needs,
which vary from year to year. The practice of using consultants to manage workload fluctuations allows the ODOT
workforce to remain stable. Most districts provide for consultant assistance on an as-needed basis by maintaining
"on-call" environmental contracts. Under the NEPA Assignment Program, consultants will continue to be used as
previously. This use of consultants to handle workload fluctuation will also effectively serve to manage adjustments
in workload that may occur with NEPA Assignment. Consultants will not be permitted to make NEPA
50 | P a g e
determinations under the NEPA Assignment Program.
Environmental consultants are used for a variety of tasks, including undertaking specific technical studies,
implementing aspects of the QC review, and preparing project specific environmental documents. Consultant-
prepared reports are reviewed by districts and OES staff following ODOT’s requirements for document review and
approval.
§773.109 (a)(5): Financial Resources under the Assignment Program ODOT OES's current annual budget for state fiscal year (SFY) 2014 is $6.84 million and ODOT’s overall budget is
over $3.5 billion. In SFY 2014, ODOT budgeted almost $200 million of this budget for consultant resources, which
provides ODOT flexibility in meeting its project and program environmental compliance needs. The primary costs
for operating the NEPA Assignment Program will come from the OES budget.
ODOT considers its budget to be sufficient to cover the costs of any and all additional environmental activities
necessary to successfully meet its Assignment Program responsibilities, including consultation with state and federal
environmental resource agencies, QC and QA of NEPA documents and supporting technical studies, undertaking
self-assessments and preparing for FHWA audits. ODOT commits to making adequate financial resources available
to meet the NEPA Assignment Program responsibilities it is assuming and the staff resources needed to successfully
execute those responsibilities. ODOT will regularly assess financial and staffing resources available for the NEPA
Assignment Program as part of its self-assessments.
ODOT’s budget is controlled by gas tax receipts and is not a part of Ohio’s general budgeting process. Because of
this, ODOT’s budget is predictable and consistent from year to year. If additional funding is provided, ODOT has
the necessary resources in place (with the on-call consultants) to handle the increase in workload.
§773.109 (a)(6): Certification for Consent to Exclusive Federal Court
Jurisdiction and Waiver of Immunity The certification is attached as Appendix C.
§773.109 (a)(7): Certification that the State of Ohio' Public Records
Act is Comparable to the Federal Freedom of Information Act The certification is attached as Appendix C.
§773.109 (a)(8)(ii): Comments Received on the Assignment Program
Application
Outreach
ODOT developed an outreach plan that outlined the public and agency outreach to be performed to help build
awareness and guide the implementation of the NEPA Assignment Program. To date, ODOT has conducted a
variety of public involvement activities. In December 2014, ODOT and FHWA jointly hosted an agency workshop
to inform the resource agencies of the NEPA Assignment Program and solicit their input regarding the FHWA
responsibilities that ODOT is applying to assume. As a follow up to this workshop, ODOT and FHWA conducted
individual follow up meetings with each state/federal agency to discuss specifics of the program and changes
51 | P a g e
necessary to implement it. ODOT also met with the 17 MPOs to inform them of ODOT’s intent to apply for the
Assignment Program. ODOT also developed and delivered a presentation regarding the NEPA Assignment Program
and other streamlining initiatives to many counties, MPOs, engineering and environmental groups. ODOT will
continue communication and outreach efforts with external agencies, local governments and other interested parties
as ODOT prepares to implement the program.
Notice of Draft Application
The availability of ODOT’s NEPA Assignment application was publicly noticed during the first week in April,
2015. The notice provided a 30-day comment period and invited those with comments to submit them to ODOT.
Comments are due by the close of business on May 15, 2015. The name and contact information for the
Environmental Administrator of OES was provided for those wishing to comment, ask questions, or request
additional information.
ODOT also notified Federal and State Resource agencies and Native American tribes, by letter, of the NEPA
Assignment application and the opportunity to comment.
Summary of Comments Received and of Changes Made to the Application in
Response to Comments
Changes to the Application was necessary based on comments received during the comment period and as identified
by ODOT. Below is a summary of all the changes made to the Application since the Application was public
noticed:
Page # Summary of the Change Reason for the change
3 “Comments are due by the close of business on May
15, 2015” changed to “May 18, 2015”.
Updated to reflect actual posting date.
26 Last full paragraph. The word “usually” was added
in the last sentence of the page before “evaluated”.
Slightly modified this wording to more
accurately reflect ODOT’s PDP process.
37 First paragraph, last sentence: “ODOT’s OES
Environmental Administrator” changed to ODOT’s
Deputy Director over the Division of Planning.
Updated to reflect changes to ODOT’s
signature process for NEPA Assignment.
37 Second to last paragraph, first sentence following the
chart: “ODOT’s OES Environmental Administrator”
changed to ODOT’s Deputy Director over the
Division of Planning.
Updated to reflect changes to ODOT’s
signature process for NEPA Assignment.
37 Second to last paragraph, second and third sentences
following the chart: “OES Environmental
Administrator” changed to “Planning Deputy
Director”.
Updated to reflect changes to ODOT’s
signature process for NEPA Assignment.
37 Second to last paragraph, last sentence on page:
“Deputy Director of the Planning Division” changed
to “Administrator of ODOT’s OES or the
Department’s Assistant Director”
Updated to reflect changes to ODOT’s
signature process for NEPA Assignment.
38 Independent Environmental Decision-Making,
Added: “and or ODOT’s OES (depending upon level
of the CE).” after “Projects qualifying as
categorically excluded from the requirement to
prepare an EA or EIS will be confirmed as CEs and
approved by district environmental staff”
This change was made to reflect that CE’s
are approved at the District and Central
Office level. The previous language only
cited CE’s approved at the District level.
40 Third paragraph, added: “) nor the U.S.
Environmental Protection Agency (USEPA” in the
first sentence of the third paragraph after “(USACE)”
This item was changed to reflect comments
provided by USEPA.
52 | P a g e
40 Third paragraph, added: “and USEPA” after
“ASACE” throughout entire paragraph (a total of 3
times).
This item was changed to reflect comments
provided by USEPA.
40 Added entire 6th paragraph beginning with
“Although OES reviews and approves…”
This item was changed to reflect comments
provided by USEPA.
42 First full paragraph, after the bullets, added: “the”
before “Director of ODOT”.
Missing word. Simple correction.
48 First full paragraph, removed: “While the addition of
environmental staff is not currently anticipated” at
the beginning of the first full paragraph.
Updated due to minor changes in ODOT’s
approach to manage the NEPA Assignment
Program.
48 First full paragraph, after the sentence ending in
“FHWA Assignment Program audit team”, the
following was added to the beginning of the next
sentence, “This is a new position to ODOT OES
and”. In that same sentence the word “also” was
removed before “manage”.
Updated due to minor changes in ODOT’s
approach to manage the NEPA Assignment
Program.
48 First full paragraph, added: “ODOT OES will also be
adding one additional position to assist the NEPA
Assignment Coordinator as needed in the audit and
self-assessment program. This position is a new
position, but will have additional work duties beyond
NEPA Assignment.” Before the last sentence of the
first full paragraph.
Updated due to minor changes in ODOT’s
approach to manage the NEPA Assignment
Program.
50 Notice of Draft Application. First full paragraph,
“Comments are due by the close of business on May
15, 2015” changed to “May 18, 2015”.
Updated to reflect actual posting date.
50-51 Summary of Comments received and of changes
made to the application in response to comments.
Removed: “To be filled out later after the public
notice period has ended”.
Added: Chart
Updated as required to reflect the results of
the public availability.
58-95 Removed: “to be filled in later after the end of the
public notice/comment period”
Added: Entire first paragraph, the entire chart and
copies of comments received.
Updated as required to reflect the results of
the public availability.
§773.109 (a)(9): Point of contact For questions on this Application or to submit any comments, please contact:
Timothy M. Hill, Administrator
Office of Environmental Services
Ohio Department of Transportation
1980 West Broad St, Mail Stop 0417
Columbus, OH 43223
(614) 644-0377
Additional information on ODOT’s NEPA Assignment Program can be found at:
http://www.dot.state.oh.us/NEPA-Assignment
53 | P a g e
Appendix A. Projects for which ODOT does not Request NEPA
Responsibility ODOT is requesting to assume FHWA’s responsibilities under NEPA for the following classes of highway projects
upon execution of the NEPA Assignment Program MOU with FHWA. In general, this includes all highway and
roadway projects in Ohio whose source of federal funding comes from FHWA or require FHWA approvals; these
projects may include funding from other federal sources as well. For these projects, ODOT requests to assume only
FHWA’s NEPA responsibilities; the request does not include assuming the NEPA responsibilities of other federal
agencies. These projects may include funding from other federal sources as well. For these projects, ODOT
requests to assume only FHWA’s NEPA responsibilities; the request does not include assuming the NEPA
responsibilities of other federal agencies.
1. All Class 1, or Environmental Impact Statement (EIS) projects, both on and off the SHS that are funded
by FHWA or require FHWA approvals. Currently, there are no projects that have a Draft Environmental
Impact Statement (DEIS) pending in Ohio.
2. All Class II, or Categorically Excluded, projects, both on and off the SHS that are funded by FHWA or
require FHWA approvals.
3. All Class III, or environmental assessment (EA) projects, both on and off the SHS that are funded by
FHWA or require FHWA approvals.
Lastly, ODOT would establish appropriate relationships with other Operating Administration(s) involved in a
multimodal project, including cooperating agency, participating agency, and lead or co-lead agency relationships
under NEPA. In addition, ODOT may use or adopt other Federal agencies’ NEPA analyses consistent with 40 CFR
parts 1500-1508 and USDOT and FHWA regulations, policies, and guidance.
Projects meeting the following criteria will be excluded from the assignment:
• Federal Lands Highway projects, unless designed and constructed by ODOT.
• Projects that cross state or international boundaries. ODOT has four of these projects, as listed below:
HAM-50/State Line Road Improvements, PID 93507- Addition of left/right turn lanes and
widening. Project is most likely CE- INDOT is the project sponsor.
HAM-IR 71/IR 75-0.00/0.22, PID 75119- Brent Spence Bridge. Approved EA, but being
supplemented due to the potential addition of tolls.
SCI-US23-0.00, PID 98150- Bridge deck overlay/resurfacing. Project will be a low level
CE.
JEF-Wellsburg Bridge, PID 79353- Project is a new bridge over Ohio River to WV. It has
an approved EA, but a reevaluation is required due to changes in the construction limits.
WVDOT is the project sponsor.
54 | P a g e
Appendix B. Federal Environmental Laws Other than NEPA for Which
ODOT is Requesting Responsibility ODOT is requesting to assume all of FHWA's responsibilities for environmental review, interagency
consultation, and other environmental-related actions pertaining to the review or approval of projects assumed
under the Program under all applicable federal environmental laws and Executive Orders, including, but not
limited to, those listed below. ODOT will be responsible for complying with the requirements of any applicable
federal environmental law regardless of its inclusion on this list (this list is derived from Appendix A of 23 CFR
773):
Air Quality
Clean Air Act (CAA), 42 U.S.C. 7401-7671 q. Any determinations that do not involve conformity.
Noise
Noise Control Act of 1972,42 U.S.C. 4901-4918
Airport Noise and Capacity Act of 1990,49 U.S.C. 4751-47533
Compliance with the noise regulations at 23 CFR part 772
Wildlife
Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-1544
Marine Mammal Protection Act, 16 U.S.C. 1361-142311
Anadromous Fish Conservation Act, 16 U.S.C. 757a-757g
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
Migratory Bird Treaty Act, 16 U.S.C. 703-712
Magnuson-Stevens Fishery Conservation and Management Act of 1976, as amended, 16 U.S.C.
180 l-1884et seq., with Essential Fish Habitat requirements at 1855(b)(I )(B)
Hazardous Materials Management
Comprehensive Environmental Response and Liability Act (CERCLA) 42 E.S.C. 103
Superfund Amendments and Reauthorization Act (SARA)
Resource Conservation and Recovery Act (RCRA)
Historic and Cultural Resources
Section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470 et seq.1
23 U.S.C. 138 and Section 4(f) of the Department of Transportation Act of 1966,49 U.S.C. 303 and
implementing regulations at 23 CFR Part 774
Archeological Resources Protection Act of 1979, 16 U.S.C. 470(aa)-470mm
Archeological and Historic Preservation Act of 1966, as amended, 16 U.S.C. 469-469(c)
Native American Grave Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001-3013 1; 18
U.S.C. 1170
Social and Economic Impacts
American Indian Religious Freedom Act, 42 U.S.C. 1996 1
55 | P a g e
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209
Water Resources and Wetlands
Clean Water Act, 33 U.S.C. 1251-1387
o Section 404
o Section 40 I
o Section 319
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
Coastal Zone Management Act, 16 U.S.C. 1451-1466
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
Section 10 of the Rivers and Harbors Act of 1899,33 U.S.C. 401-406
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931
Wetlands Mitigation, 23 U.S.C. 119(g), 133 (b)(l4)
Flood Disaster Protection Act, 42 U.S.C. 4001-4128
Parklands
Section 4(t) of the Department of Transportation Act of 1966,23 U.S.C. 138,49 U.S.C. 303
and implementing rules at 23 C.F.R. 774.
Land and Water Conservation Fund (LWCF) Act, 16 U.S.C. 4601-4 4601-11
Executive Orders Relating to Highway Projects
E.O. 11990, Protection of Wetlands
E.O. 11988, Floodplain Management
E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low
Income Populations
E.O. 13112, Invasive Species
Note:
I. Under these laws and Executive Orders, FHWA will retain responsibility for conducting formal
government-to-government consultations with federally recognized Indian tribes. ODOT will continue
to handle routine consultations with the tribes and understands that a tribe has the right to direct
consultation with FHWA upon request. ODOT may also assist FHWA with formal consultations, with
the consent of a tribe, but FHWA remains responsible that this consultation occurs. FHWA's retention
of formal consultation responsibilities under NAGPRA will not limit ODOT’s existing activities under
this law.
56 | P a g e
Appendix C. Certifications for Consent to Exclusive Federal Court
Jurisdiction and Waiver of Immunity and the State of Ohio' Public
Records Act is Comparable to the Federal Freedom of Information Act
57 | P a g e
58 | P a g e
59 | P a g e
Appendix D: Copies of Comments Received on the Assignment
Program Application and Responses Provided to the Commenters ODOT’s draft application was publicly noticed during the first week in April, 2015 for a 30-day comment period. Comments were due by the close of business on May 15, 2015. A notice of the draft application's availability was published in the paper with the largest circulation in the following cities: Columbus, Cincinnati, Cleveland, Dayton and Toledo. ODOT also sent notice of the application by email/letter with request for comment to Federal and State resource agencies and Native American tribes. Lastly, ODOT also sent notices to various associations and other groups and posted the availability of the application and how to provide comments on ODOT’s WEB site. Below are the specifics on how ODOT’s Application was public noticed:
Agency/Group/Organization How was the Application sent? Date ODOT’s WEB site Application was posted to ODOT’s NEPA Assignment
Website with the ability to make comments right from the site. Links were placed on ODOT’s main Website.
4/5/15
Advisory Council on Historic Preservation
Email w/attached letter. 4/7/15
Federal Transit Administration Email w/attached letter. 4/7/15 US Department of Housing and Urban Development
Email w/attached letter. 4/7/15
Ohio Contractors Association Email w/attached letter. 4/7/15 Ohio Department of Natural Resources
Email w/attached letter. 4/7/15
Ohio Department of Environmental Protection Agency
Email w/attached letter. 4/7/15
Ohio Municipal League Email w/attached letter. 4/7/15 Ohio State Historic Preservation Office
Email w/attached letter. 4/7/15
Ohio Wetland Foundation Email w/attached letter. 4/7/15 The Nature Conservancy Email w/attached letter. 4/7/15 US Army Corps of Engineers Email w/attached letter. 4/7/15 US Coast Guard Email w/attached letter. 4/7/15 US Department of Protection Agency
Email w/attached letter. 4/7/15
US Department of Agriculture Email w/attached letter. 4/7/15 US Fish & Wildlife Service Email w/attached letter. 4/7/15 Wetland Resource Center Email w/attached letter. 4/7/15 County Engineers Association of Ohio
Email w/attached letter. 4/7/15
American Council of Engineering Companies of Ohio
Email w/attached letter. 4/7/15
Ohio Association of Regional Councils and Ohio’s Metropolitan Planning Organizations
Emails were sent to all 17 of Ohio’s MPO’s. Emails informed of the opportunity to comment and requested to make the Application available to anyone who may request to view it.
4/8/15
Native America Tribes Emails w/attached letters were sent to each Tribe with an Ohio interest. The tribes are: Absentee-Shawnee Tribe of Oklahoma, Citizen Potawatomi Nation, Delaware Tribe of Indians, Eastern Shawnee Tribe of Oklahoma, Forest County Potawatomi, Miami Tribe of Oklahoma, Ottawa Tribe of Oklahoma, Peoria Tribe of Indians of Oklahoma, Prairie Band of Potawatomi Nation, Seneca Nation of Indians, Seneca-Cayuga Tribe of Oklahoma, The Delaware Nation, The Shawnee Tribe, Tonawonda Seneca Nation, Turtle Mountain Band of Chippewa Indians, and
4/8/15 and 4/9/15
60 | P a g e
Wyandotte Nation. Newspapers in Columbus, Cincinnati, Cleveland, Dayton and Toledo
Ads were placed in the Sunday papers 4/12/15
The following is a summary of comments that were received and ODOT’s response to those comments (copies of each comment are included following this table):
Agency/Group/Organization Date Comment ODOT’s Response
Advisory Council on Historic Preservation
2/26/15 Note: Prior to ODOT’s Application being made available for public comment, ACHP submitted a February 26, 2015 letter to ODOT and FHWA outlining their comments on the NEPA Assignment Program. This letter was generated after a January 21, 2015 conference call with ACHP, ODOT and FHWA. Below are ACHP’s comments:
What factors will FHWA consider when determining whether to withdraw a project from the NEPA assignment process when an Indian tribe requests government to government consultation with FHWA?
Under what circumstances will FHWA get involved in project reviews beyond government to government tribal consultation?
How will public involvement incorporate lessons learned by ODOT from past Section 106 review experiences? If guidelines have recently been revised, please share them with the ACHP.
What opportunities do the State Historic Preservation Officer, local governments, Certified Local Governments and the ACHP have to comment on the draft MOU?
How does ODOT intend to involve ACHP and SHPO in annual audits?
If most of the project reviews in Ohio will be handled as Categorical Exclusions (CEs) under NEPA, how will the public know about these projects under the NEPA assignment since public involvement is not required for CEs? How will extraordinary circumstances for CEs be handled by ODOT?
How will the FHWA Federal-Aid Highway Program Programmatic Agreement(s) be integrated into the NEPA Assignment MOU?
Will the ACHP be provided a summary of comments related to historic preservation after the draft MOU is published?
ODOT and FHWA responded to ACHP in a March 17, 2015 letter. This letter is included in the ODOT Application (after ACHP’s comments letter) and addresses each of ACHP’s major points.
US Department of Housing and Urban Development
4/9/15 HUD has over 50 years’ experience of experience of delegating NEPA responsibility to state and local governments.
The experience has been very positive resulting in timely environmental reviews that have facilitated more expeditious project implementation and completion.
Charging units of local government and states with the environmental review responsibility for projects forces communities to take ownership of those reviews and become more sensitized to environmental conditions and factors resulting in projects that are better intone with the environment and not a
Appreciate the comment and support. No changes to the Application required.
61 | P a g e
detriment but hopefully an improvement to the environment.
HUD fully supports the assignment of NEPA responsibilities by the FHWA to ODOT.
County Engineers Association of Ohio
4/13/15 CEAO continually looks for innovative methods to improve performance.
Fully supports ODOT’s efforts with NEPA Assignment.
Feels the program will streamline the environmental process and offer significant cost savings to the Department while still ensuring a high level of environmental protection and compliance.
CEAO has confident in ODOT’s Office of Environmental Services’ ability to undertake this new program.
Appreciate the comment and support. No changes to the Application required.
American Council of Engineering Companies of Ohio
4/30/15 ACEC Ohio enthusiastically supports ODOT’s proposed assumption of responsibility for NEPA compliance.
ACEC feels it will expedite the design of highway and bridge project and will save many millions in project development costs.
Feel it will be a positive development.
Appreciate the comment and support. No changes to the Application required.
The Nature Conservancy 5/4/15 TNC the proposal appears to be neutral in terms of likely environmental impact.
TNC stated that ODOT will continue to comply with all relevant federal laws, regulations, policies and formal guidance. In addition, their understanding is that the proposed approach could help to streamline processes and reduce costs of compliance, which they view favorably.
TNC stated: The Nature Conservancy in Ohio is involved in the development and revision of state and federal policies and regulations related to the impacts of transportation infrastructure. We remain vigilant to environmental impacts from transportation projects in Ohio, and look forward to working closely with ODOT to ensure that the most effective approaches to avoiding, minimizing and offsetting impacts to environmental resources are taken ODOT pursues its mission. In summary, we view this proposed change neutrally in terms of environmental outcomes, and support the potential for cost savings that may come from the approach. While we do not anticipate any significant changes in environmental performance, we will continue to be vigilant to changes.
Appreciate the comment. No changes to the Application required.
Ohio Contractors Association 5/4/15 OCA stated that ODOT is highly trained and experience and is well versed to assume these duties.
OCA feels ODOT’s processes are well established to fulfill the role currently performed by the FWHA.
OCA stated that the leadership and staff at ODOT’s Office of Environmental Services are highly professional and competent.
OCA endorse the NEPA Assignment Application.
Appreciate the comment and support. No changes to the Application required.
US Department of Protection Agency
5/14/15 USEPA had the follow specific comments on the application:
The Application should also recognize USEPA’s air conformity
Appreciate the comment and support. Changes will be made to the
62 | P a g e
program and include USEPA jointly with the USACE for having statutory authority with the Corps.
USEPA supports early coordination in the process and encourages the coordination of preliminary draft NEPA documents.
The USEPA supports ODOT assuming NEPA responsibilities from FHWA.
Application to add USEPA’s air conformity program and to recognize their 404 permit authority.
Ohio Department of Environmental Protection Agency
5/15/15 The OEPA supports ODOT’s application to assume NEPA.
Appreciate the comment and support. No changes to the Application required.
Ohio Department of Natural Resources
5/18/15 NOTE- ODNR contacted ODOT prior to 5/15/15 and informed ODOT that they have a comment letter prepared and it was in their signature process for their Director to sign. Although this letter arrived after the comment period, because their notification was within the comment period, ODOT included their below letter.
The ODNR supports ODOT’s application to assume NEPA.
Appreciate the comment and support. No changes to the Application required.
63 | P a g e
64 | P a g e
65 | P a g e
66 | P a g e
67 | P a g e
68 | P a g e
69 | P a g e
70 | P a g e
71 | P a g e
72 | P a g e
73 | P a g e
74 | P a g e
75 | P a g e
76 | P a g e
77 | P a g e
78 | P a g e
79 | P a g e
Appendix E: Programmatic Categorical Exclusion Agreement
between FHWA and ODOT dated February 13, 2015.
PROGRAMMATIC
CATEGORICAL EXCLUSION AGREEMENT
BETWEEN
THE FEDERAL HIGHWAY ADMINISTRATION
AND
THE OHIO DEPARTMENT OF TRANSPORTATION
February 13, 2015
Agreement Number 18769 (Supersedes Agreement Number 16400)
80 | P a g e
Recitals
a. The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4370h (2014), directs federal agencies to consider the environmental impacts of their proposed actions though preparation of an Environmental Assessment (EA) or Environmental Impact Statement (EIS) unless a particular action is categorically excluded.
b. The Federal Highway Administration (FHWA) is a federal agency subject to NEPA that oversees the distribution and spending of federal funds under the Federal-aid Highway Program, which are federal actions under NEPA.
c. FHWA has promulgated a number of Categorical Exclusions (CE) listed in 23 CFR 711.117 for certain actions that it has determined do not individually or cumulatively have a significant effect on the human environment.
d. The Ohio Department of Transportation (ODOT) is a state agency that undertake transportation projects using federal funding received under the Federal-aid Highway Program and may assist FHWA in fulfilling its obligations under NEPA pursuant to 23 CFR 771.109, 771.113, and 771.117(b).
e. The Ohio Rail Development Commission (ORDC) is a state agency within ODOT that undertakes transportation projects using federal funding received under the Federal-aid Highway Program. When ODOT is cited in this document, it shall be deemed to include the ORDC in terms of responsibilities and obligations in processing CEs involving FHWA funded projects.
f. Section 1318(d) of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public law 112-141, 126 Stat. 405 (July 6, 2012), allows FHWA to enter into Programmatic Agreements (PA) with the States that establish efficient administrative procedures for carrying out environmental and other required project reviews, including agreements that allow a State to determine on behalf of FHWA whether a project is categorically excluded from preparation of an EA or EIS under NEPA.
g. FHWA, Ohio Division and ODOT (the parties) enter into this PA pursuant to 23 CFR 771.117(g) to allow ODOT to assist FHWA in making CE determinations subject to the conditions contained herein.
Parties The Parties to this Agreement are the FHWA and ODOT. Authorities This agreement is entered into pursuant to the following authorities:
A. National Environmental Policy Act, 42 U.S.C. 4321 – 4370 B. Moving Ahead for Progress in the 21st Century Act, P.L. 112-141, 126 Stat. 405, Sec.
1318(d) C. 40 CFR parts 1500 – 1508 D. DOT Order 5610.1C E. 23 CFR 771.117
Introduction The FHWA, Ohio Division follows the philosophy that the goal of the NEPA process is better decisions and not bigger documents. The primary purpose of this Agreement is to increase flexibility, streamline the environmental process and reduce paperwork. This Agreement provides for the expeditious processing of CE actions by ODOT, under the guidance and, in accordance with this agreement, with the approval of FHWA. Project documentation shall be developed by ODOT that demonstrates that CE actions meet the criteria established under this Agreement and that individual actions meet the definition of a CE defined in 23 CFR 771.117(a) (see Council on Environmental Quality [CEQ] definition below) and have no unusual circumstances defined in 23 CFR 771.117(b) that would require the preparation of either an EA or EIS. The FHWA shall rely upon ODOT’s CE determinations as part of consideration of notices to proceed to final design, right-of-way purchases, or construction. The FHWA agrees that ODOT shall complete the task
81 | P a g e
of analyzing environmental impacts and preparing environmental documentation for NEPA compliance pursuant to 23 CFR 771.109, 771.113, and 771.117(b). It is agreed to by ODOT that all conditions contained herein will be satisfied for all projects processed under this Agreement. This Agreement supersedes all previous CE processing agreements held between FHWA and ODOT, and applies to all projects that involve FHWA funding or approvals. In accordance with FHWA regulations (23 CFR 771, “Environmental Impact and Related Procedures”), CEs are actions which meet the definition contained in the CEQ regulations at 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, categorically excluded from the requirement to prepare an EA or EIS.
The term “Significant” as used in NEPA is defined at 40 CFR 1508.27 and requires consideration of both context and intensity. This agreement has been developed to be in conformance with the policy and procedures for the environmental processing of Class II-CE actions as defined in Section 23 CFR 771.117 (and as amended). General The provisions of this Agreement provide for:
1. ODOT to assure compliance with all applicable federal environmental and related requirements.
2. A process that is consistent in documenting information that complies with environmental requirements on a statewide basis.
3. A process that is concise and easy to follow. 4. A process that provides the proper information for making appropriate decisions. 5. A process that uses technology to reduce paperwork.
For any action processed in accordance with this Agreement that involves unusual circumstances, ODOT will conduct appropriate environmental studies to determine if the CE classification is proper per 23 CFR 771.117(b). Such unusual circumstances include, but are not limited to: Significant environmental impacts, Substantial controversy on environmental grounds, Significant impacts on properties protected by Section 4(f) of the DOT Act or Section 106 of the National Historic Preservation Act, or Inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to the environmental aspects of the action. CE Actions All CEs will be classified as “C” or “D” listed CEs in accordance with 23 CFR 771.117 and this Agreement. The appropriate determination of a CE is based upon the type of action and project impacts. The documentation and approval process are discussed on the following pages and all actions will be processed and documented with ODOT’s Online CE System or its successor.
82 | P a g e
In accordance with this Agreement, C1 projects do not require additional documentation beyond determination that they meet the criteria presented in Appendix A. Projects defined as “C2” require documentation as a result of changes implemented by MAP-21 (P.L. 112-141) and as presented in Appendix B. Projects identified as meeting the criteria of 23 CFR 771.117(d) are processed according to context and intensity of impacts to environmental resources, and as presented in Appendix C. Pursuant to 23 CFR 771.117(d), projects may qualify as a CE if appropriately analyzed and are documented to meet CE criteria. These “documented” or “D” project actions can include projects with impacts other than listed as C1 or C2 actions. Projects in this category must meet the intent of 23 CFR 771.117(d) in that they must satisfy the criteria for CE Classification, cannot involve significant environmental impacts, and require environmental analysis and documentation that serves as a basis for making a CE determination.
The District Environmental Coordinator (DEC) shall make CE determinations of C1 or C2 actions on behalf of FHWA.
The DEC will make CE determinations of D1 actions on behalf of FHWA.
ODOT’s Office of Environmental Services (OES) will make CE determinations of D2 actions on behalf of FHWA.
FHWA is responsible for the approval of D3 CE actions after taking into account ODOT’s recommendation for CE classification of such action.
Environmental impact thresholds for each are defined in Appendices A through C. It is the responsibility of ODOT to ensure that each project processed under this Agreement will be documented in accordance with the thresholds specified in Appendices A through C. This Agreement shall not preclude ODOT from requesting FHWA to individually review and approve a project action when deemed necessary by ODOT even though the action falls within the bounds of this Agreement. This Agreement shall also not preclude FHWA the right to request of ODOT individual review for any CE actions. Class of Action Higher than a Categorical Exclusion When the significance of impacts of a transportation project proposal is uncertain or an action does not meet any of the classifications for a “C” or “D” classified CE, as outlined in this Agreement, ODOT-OES will consult with FHWA to determine a class of action per 23 CFR 771. Re-Evaluations It may become necessary for ODOT to re-evaluate the CE classification for projects having CE determinations. If there is a change in project scope or impacts, a written re-evaluation will be required prior to further approvals being granted. The re-evaluation of a CE shall be conducted by ODOT for the following circumstances:
If the project scope has changed since the last CE determination
If the project impacts have changed since the last CE determination If the project has not commenced within five years from the project’s CE determination and the environmental studies have not been re-examined during that time, those studies shall be evaluated and ODOT shall conduct agency coordination as appropriate. This may prompt reevaluation of the CE determination to document any changes to the project as a result of agency coordination.
A written re-evaluation shall be completed by ODOT if there are substantial changes in the proposed action that are relevant to environmental concerns or if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed actions or its impacts.
83 | P a g e
The signature authority for re-evaluations will be the same as for the original CE document unless the re-evaluation indicates a change in the level of document is needed. Prior to filing the plan package with Central Office, District Environmental Staff will complete the Environmental Consultation Form (ECF) or its successor. It is the responsibility of ODOT to ensure that the conditions of the project have not changed and the NEPA determination remains valid for the action. ODOT Performance Measures
1. ODOT-OES will provide FHWA access to a list of active projects being processed as D3 CEs via the CE On-line System. Active projects are those projects currently programmed on the existing 4-year Statewide Transportation Improvement Program (STIP). Additionally, ODOT-OES will provide FHWA access to a list of projects processed under this agreement quarterly.
2. ODOT must maintain adequate organizational and staff capability and expertise, or procure through consultant services some or all of the technical expertise needed, to effectively carry out the provisions of this Agreement. This includes, without limitation:
a) Using appropriate technical and managerial expertise to perform the functions set forth under this Agreement; and
b) Devoting adequate financial and staff resources to carry out the processing of projects under this Agreement.
3. ODOT shall have protocols to ensure that environmental commitments are fulfilled. 4. ODOT will continue to offer training as part of its consultant prequalification process to
ensure high quality standards in documentation preparation. 5. ODOT will monitor its processes relating to project approvals, environmental analysis and
project file documentation and check for errors and omissions. ODOT shall take corrective action as needed and will document quality control activities and any corrective actions taken.
6. ODOT shall ensure that project records are available to the public consistent with requirements applicable to State agencies under Ohio Revised Code §149.43 (Open Records law).
Monitoring Full compliance with the Agreement will be determined by FHWA through completion of process reviews on a triennial basis through process reviews.
Process reviews of all actions classified as C1, C2 and D1 will be conducted by ODOT-OES, and a report detailing the findings, recommendations and best practices will be provided to FHWA
A process review of all actions classified as D2 will be conducted by FHWA The results of such reviews will be used to determine what agreement modifications, if any, may be needed. Nothing in this Agreement shall prevent FHWA from undertaking other monitoring or oversight actions, including process reviews, with respect to ODOT’s performance under this Agreement. In its sole discretion, FHWA may require ODOT to perform other quality assurance activities, including other types of monitoring, as may be reasonably required to ensure compliance with applicable Federal laws and regulations. Term, Renewal, Termination, Amendments Modification and Administrative Modifications This Agreement shall have a term of five years, beginning on the date of the last signature. This Agreement is renewable for additional terms of five years each, if ODOT requests renewal and FHWA determines that ODOT has satisfactorily carried out the provisions of this Agreement. In considering any renewal of this Agreement, FHWA will evaluate the effectiveness of the Agreement and its overall impact on the environmental review process.
84 | P a g e
ODOT shall post an executed copy of this Agreement on its web site, available to the public. At least six (6) months prior to the end of each five year term, ODOT and FHWA shall meet to discuss the results under the Agreement and consider amendments to this Agreement. If the parties do not renew the Agreement, then it shall expire at the end of the term then in effect. Either party may terminate this Agreement at any time by giving at least a 30 day notice to the other party. Any party to this Agreement may request that it or the Appendices be amended or administratively modified to reflect changes, whereupon the parties shall consult to consider such an amendment. If the parties agree to amend this Agreement or the Appendices, then FHWA and ODOT may execute an amendment with new signatures and dates after all necessary reviews are completed. The term of the Agreement shall remain unchanged unless otherwise expressly stated in the amended Agreement. Minor non-substantive changes to the Appendices may be made through appropriate clarification guidance to better refine implementation of the agreement based on experience. This will not require re-execution of the Agreement. Signatures
Execution of this Agreement and implementation of its terms by both parties provides evidence that both parties have reviewed this Agreement and agree to the terms and conditions for its implementation. This Agreement is effective upon the date of the last signature below.
85 | P a g e
Appendix A: Categorical Exclusion C1
Due to the limited scope of work for certain projects and based on ODOT’s and FHWA’s past experience with similar actions, these actions meet the intent of CEQ regulation (Section 1508.4) and 23 CFR 771.117(a) and 771.117(c): some actions "...meet the criteria for CEs in the CEQ regulation and normally do not require any further NEPA approvals by the FHWA." These projects must have independent utility and logical termini and must not exceed any of the C1 project impact thresholds listed below. Based on past experience, projects listed below will not result in any significant impacts to the human and/or natural environment. If environmental resources will be impacted, the level of documentation will need to be elevated. A C1 project form will be completed and signed by the DEC, the ORDC EC, or their designee for projects where no additional environmental verification is required. The DEC shall be ultimately responsible for ensuring that projects meet the criteria of a C1 action and do not require any further NEPA approvals by the Administration. The following project actions have been determined to meet the criteria of a C1 action as defined by ODOT and FHWA:
(1) Activities which do not involve or lead directly to construction, such as planning and technical studies; grants for training; engineering to define the elements of a proposed action or alternatives so that social, economic, and environmental effects can be assessed; and Federal-aid system revisions which establish classes of highways on the Federal-aid highway system. Examples include:
Study type projects (i.e. feasibility studies, etc.).
Projects that utilize no federal monies or require no federal actions (State-funded
actions only).
Land donations to ODOT associated with ROW permits (non-NHS/non-Limited Access right-of-way). (Environmental Site Assessment issues will require coordination with ODOT-OES) (State-funded actions only).*
(2) Approval of utility installations along or across a transportation facility. Examples include:
Utility tower lighting and street lighting projects.
(3) Construction of bicycle and pedestrian lanes, paths, and facilities. Examples include:
Walkways, sidewalks, shared-use paths, and facilities, small passenger shelters, (i.e. construction of a bike path on an existing railroad bed, designations of certain highways as bike routes, painting of existing paved shoulders as bike lanes, ADA ramps, etc.) provided that no new disturbance will occur.
(4) Activities included in the State's "highway safety plan" under 23 U.S.C. 402. (5) Transfer of Federal lands pursuant to 23 U.S.C. 107(d) and/or 23 U.S.C. 317 when the
land transfer is in support of an action that is not otherwise subject to FHWA review under NEPA.
(6) The installation of noise barriers or alterations to existing publicly owned buildings to
provide for noise reduction. Examples include:
Maintenance and/or replacement of existing noise wall panels and/or posts
(7) Landscaping. Examples include:
Herbicidal spraying,
Mowing or brush removal/trimming projects.
This is an example added for State administrative purposes only. Its inclusion in this list of examples does not mean that the action is a major Federal action subject to NEPA. It has been added to illustrate to State practitioners that this type of State-only action is similar to the type of actions associated with this CE.
86 | P a g e
Beautification or facility improvement projects (i.e. landscaping, curb and gutter replacement, installation of park benches, decorative lighting, etc.).
(8) Installation of fencing, signs, pavement markings, small passenger shelters, traffic
signals, and railroad warning devices where no substantial land acquisition or traffic disruption will occur. Examples include:
The installation or maintenance of signs, pavement markings/raised pavement markers/sensors, traffic calming activities, and/or new or replacement fencing (right-of-way, vandal, etc.).
General pavement marking or "line painting" projects.
(9) The following actions for transportation facilities damaged by an incident resulting in an emergency declared by the Governor of the State and concurred in by the Secretary, or a disaster or emergency declared by the President pursuant to the Robert T. Stafford Act (42 U.S.C. 5121):
(i) Emergency repairs under 23 U.S.C. 125; and (ii) The repair, reconstruction, restoration, retrofitting, or replacement of any road, highway, bridge, tunnel, or transit facility (such as a ferry dock or bus transfer station), including ancillary transportation facilities (such as pedestrian/bicycle paths and bike lanes), that is in operation or under construction when damaged and the action:
(A) Occurs within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original (which may include upgrades to meet existing codes and standards as well as upgrades warranted to address conditions that have changed since the original construction); and
(B) Is commenced within a 2-year period beginning on the date of the declaration.
(10) Acquisition of scenic easements. Examples include:
Conservation/mitigation easements and fee simple.
Land acquisition by a public agency/public park entity for passive recreational use.
(11) Determination of payback under 23 U.S.C. 156 for property previously acquired with Federal-aid participation.
(12) Improvements to existing rest areas and truck weigh stations. Examples include:
Improvements to existing rest areas and weigh stations for minor maintenance (i.e. mill and resurfacing of existing parking areas). Projects involving major construction may require a higher level of documentation.
Truck stop electrification and construction/installation of alternative energy facilities (CNG, solar, etc.) at existing facilities
(13) Ridesharing activities. Examples include:
Transportation corridor fringe parking facilities, park-and-ride lots and ridesharing activities
(14) Bus and rail car rehabilitation. (15) Alterations to facilities or vehicles in order to make them accessible for elderly and
handicapped persons. (16) Program administration, technical assistance activities, and operating assistance to
transit authorities to continue existing service or increase service to meet routine changes in demand.
87 | P a g e
(17) The purchase of vehicles by the applicant where the use of these vehicles can be accommodated by existing facilities or by new facilities which themselves are within a CE. Examples include:
Purchase or conversion of vehicles to alternative fuel uses (CNG, E-85, etc.)
(18) Track and railbed maintenance and improvements when carried out within the existing right-of-way. Examples include:
Track and railbed acquisition.
(19) Purchase and installation of operating or maintenance equipment to be located within the transit facility and with no significant impacts off the site.
(20) (Not applicable to ODOT) (21) Deployment of electronics, photonics, communications, or information processing used
singly or in combination, or as components of a fully integrated system, to improve the efficiency or safety of a surface transportation system or to enhance security or passenger convenience. Examples include, but are not limited to, traffic control and detector devices, lane management systems, electronic payment equipment, automatic vehicle locaters, automated passenger counters, computer-aided dispatching systems, radio communications systems, dynamic message signs, and security equipment including surveillance and detection cameras on roadways and in transit facilities and on buses. Examples include:
Replacement of existing or installation of new traffic signals, flashing beacons, railroad warning devices and the installation of ITS system components
Upgrade of existing tower lighting to new technologies that ensure a lesser impact than the current system.
Implementation of other new safety or operations technologies (must be approved by OES).
(22) Projects, as defined in 23 U.S.C. 101, that would take place entirely within the existing
operational right-of-way. Existing operational right-of-way refers to right-of-way that has been disturbed for an existing transportation facility or is maintained for a transportation purpose. This area includes the features associated with the physical footprint of the transportation facility (including the roadway, bridges, interchanges, culverts, drainage, fixed guideways, mitigation areas, etc.) and other areas maintained for transportation purposes such as clear zone, traffic control signage, landscaping, any rest areas with direct access to a controlled access highway, areas maintained for safety and security of a transportation facility, parking facilities with direct access to an existing transportation facility, transit power substations, transit venting structures, and transit maintenance facilities. Portions of the right-of-way that have not been disturbed or that are not maintained for transportation purposes are not in the existing operational right-of-way. Examples include:
Tower lighting within the existing operational right-of-way.
Guardrail installation and replacement (including median cable barriers) where roadway ditches and backslopes will not be relocated
Improvements to existing ODOT/County maintenance facilities.
Construciton of new ODOT/County maintenance facilities within existing operational right-of-way.
Environmental mitigation activities within existing operational right-of-way.
Work on pedestrian and vehicle transfer structures and associated utilities, buildings, and terminals within existing operational right-of-way.
Construction of alternative energy facilities (fuel tank farms, wind turbines, etc.) (23) Projects that receive less than $5,000,000 of Federal funds or with a total estimated cost
88 | P a g e
of not more than $30,000,000 and with Federal funds that comprise less than 15 percent of the total estimated project cost.
(24) Localized geotechnical and other investigations to provide information for preliminary
design and for environmental analyses and permitting purposes, such as drilling test bores for soil sampling; archeological investigations for archeology resources assessment or similar survey; and wetland surveys. (This only applies to stand alone projects, not for environmental surveys being conducted as part of a project with an environmental document)
(25) Environmental restoration and pollution abatement actions to minimize or mitigate the
impacts of any existing transportation facility (including retrofitting and construction of stormwater treatment systems to meet Federal and State requirements under sections 401 and 402 of the Federal Water Pollution Control Act (33 U.S.C. 1341; 1342)) carried out to address water pollution or environmental degradation. Examples include:
Related environmental mitigation activities (wetland, stream, upland, etc.).
(26) thru (28) Per 23 CFR 771(c)(26)-(28) and MAP-21, these items cannot be processed as a C1.
See C2 list in Appendix B. (29) Purchase, construction, replacement, or rehabilitation of ferry vessels (including
improvements to ferry vessel safety, navigation, and security systems) that would not require a change in the function of the ferry terminals and can be accommodated by existing facilities or by new facilities which themselves are within a CE.
(30) Rehabilitation or reconstruction of existing ferry facilities that occupy substantially the
same geographic footprint, do not result in a change in their functional use, and do not result in a substantial increase in the existing facility’s capacity. Example actions include work on pedestrian and vehicle transfer structures and associated utilities, buildings, and terminals.
C1 Project Impacts Thresholds
Projects that involve any impacts to the following will not be considered eligible for processing as a C1:
Any acquisition of new temporary or permanent right-of-way for construction. All C1 projects must occur within existing right-of-way with the exception of work agreements.
Any National Scenic River corridor impacts
The need for any Waterway Permits
Any impacts to state or federally threatened or endangered species
Any impacts to wetlands
Any impacts to historic properties or historic districts
Any Section 4(f)/6(f) impacts
Substantial traffic disruption, including the use of a temporary road, detour or ramp closure unless the use of such facilities satisfy the following conditions:
o Provisions are made for access by local traffic and so posted; o Through-traffic dependent businesses will not be adversely affected; o The detour or ramp closure, to the extent possible, will not interfere with any local
special event or festival; o The temporary road, detour or ramp closure does not substantially change the
environmental consequences of the action; o There is no substantial controversy associated with the temporary road, detour, or
ramp closure
Minor public or agency controversy on environmental grounds (no opposition from any
89 | P a g e
organized groups or agencies and no unresolved environmental coordination).
90 | P a g e
Appendix B: Categorical Exclusion C2
Due to the limited scope of work for certain projects and based on ODOT’s and FHWA’s past experience with similar actions, these actions meet the intent of CEQ regulations (Section 1508.4), and 23 CFR 771.117(a), 771.117(c) and 771.117(d). Furthermore, these actions satisfy the criteria for CE Classification and do not involve significant environmental impacts. These projects must have independent utility and logical termini and must not exceed any of the C2 project impact thresholds listed below. They require a minimum level of documentation to ensure that no unusual circumstances are present (for example but not limited to: significant environmental impacts; substantial controversy on environmental grounds; significant impact on properties protected by Section 4(f) of the DOT Act or Section 106 of the National Historic Preservation Act; or inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to the environmental aspects of the action) that would warrant a higher level of NEPA documentation. Certain C1 actions that exceed C1 impact thresholds can be processed as a C2 only if they meet the criteria of a C2 action and if they do not exceed C2 impact thresholds. Those C1 actions that do not meet the criteria for C2 shall be processed at the next appropriate higher level (D listed projects). A C2 Environmental Form shall be completed by ODOT, with determination provided by the DEC or ORDC EC via signature. The following project actions have been determined to meet the criteria of a C2 action as defined by ODOT and FHWA:
(26) Modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction,
adding shoulders, or adding auxiliary lanes (including parking, weaving, turning, and climbing lanes), if the action meets the constraints in paragraph (e) of this section. Examples include:
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.
Installation of new noise walls and other new noise mitigation projects.
Construction of highway safety and truck escape ramps.
Construction of bicycle lanes and pedestrian walkways, sidewalks, shared-use paths, or facilities and trailhead parking that do not otherwise qualify for a C1 designation.
Beautification or facility improvement projects (i.e. landscaping, curb and gutter installation and replacement, ADA ramps/curb ramps, installation of park benches, decorative lighting, etc.).
Construction of alternative energy facilities (fuel tank farms, wind turbines, etc.)* (27) Highway safety or traffic operations improvement projects, including the installation of
ramp metering control devices and lighting, if the project meets the constraints in paragraph (e) of this section. Examples include:
Lane reduction (“road diet”) changes provided traffic analysis is completed.
Railroad projects that close at-grade crossings to improve safety or traffic operations.
(28) Bridge rehabilitation, reconstruction, or replacement or the construction of grade
separation to replace existing at-grade railroad crossings, if the actions meet the constraints in 23 CFR 771.117(e). Examples include:
Railroad projects that close or relocate at-grade crossings C2 Project Impacts Thresholds The environmental resources listed below require documentation to illustrate that no significant impacts will occur. The C2 classification cannot be applied to projects when the threshold is exceeded for each resource:
91 | P a g e
No acquisition of more than a minor amount of right-of-way such as strip take or that would result in any residential or non-residential displacements.
No need for a bridge permit from the U.S. Coast Guard, or an individual Section 404 permit under the Clean Water Act, or a Section 10 permit under the Rivers and Harbors Act of 1899
No finding of adverse effect to any historic property considered under Section 106 of the National Historic Preservation Act
No Section 4(f) use resulting in greater than de minimis impacts
No finding of “may affect, likely to adversely affect” threatened or endangered species or critical habitat under the Endangered Species Act
No construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions.
No changes in access control.
No floodplain encroachment other than functionally dependent uses (e.g. bridges, wetlands) or actions that facilitate open space use.(e.g. recreational trails, bicycle and pedestrian paths)
No construction activities in, across, or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.
No minor public or agency controversy on environmental grounds (no opposition from any organized groups or agencies and no unresolved environmental coordination).
If an EJ Analysis Report is required, the project must be processed as a D-level CE or higher level document.
ODOT will also consider the following areas for C2 projects. Documentation of these areas is only required if there is a potential for impacts.
Air Quality & Noise – Studies not required or no impacts will occur based on studies and coordination conducted
Hazardous Materials - Limited to petroleum related Underground Storage Tanks (USTs) and/or releases
Farmland – Not present or amount of ROW needed does not exceed criteria of the Farmland Memorandum of Understanding (MOU)
92 | P a g e
Appendix C: Categorical Exclusion – D listed Actions ODOT agrees to process D-listed actions pursuant to 23 CFR 771.117(d). Projects in this category must meet the intent of 23 CFR 771.117 (d), satisfy the criteria for CE Classification and do not involve significant environmental impacts. ODOT shall confirm proposed projects as D1 with the concurrence of either the DEC or the ORDC EC. The confirmation of D2 actions will be made by ODOT-OES. FHWA is responsible for the review and approval of D3 actions. D listed projects must have independent utility and logical termini and must not exceed any of the D project impact thresholds listed below. The following list of actions meet the criteria for a CE in the regulations (40 CFR 1508.4 and 23 CFR 771.117(a)). They require the submission of documentation demonstrating that the specific conditions or criteria are satisfied and that significant environmental effects will not result.
(1)-(3) [Reserved]
(4) Transportation corridor fringe parking facilities.
(5) Construction of new truck weigh stations or rest areas.
(6) Approvals for disposal of excess right-of-way or for joint or limited use of right-of-way, where the proposed use does not have significant adverse impacts.
(7) Approvals for changes in access control.
(8) 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.
(9) Rehabilitation or reconstruction 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.
(10) Construction of bus transfer facilities (an open area consisting of passenger shelters, boarding areas, kiosks and related street improvements) when located in a commercial area or other high activity center in which there is adequate street capacity for projected bus traffic.
(11) Construction 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.
(12) Acquisition of land for hardship or protective purposes. Hardship and protective buying will be permitted only for a particular parcel or a limited number of parcels. These types of land acquisition qualify for a CE only where the acquisition will not limit the evaluation of alternatives, including shifts in alignment for planned construction projects, which may be required in the NEPA process. No project development on such land may proceed until the NEPA process has been completed.
(i) Hardship acquisition is early acquisition of property by the applicant at the property owner's request to alleviate particular hardship to the owner, in contrast to others, because of an inability to sell his property. This is justified when the property owner
93 | P a g e
can document on the basis of health, safety or financial reasons that remaining in the property poses an undue hardship compared to others.
(ii) Protective acquisition is done to prevent imminent development of a parcel which may be needed for a proposed transportation corridor or site. Documentation must clearly demonstrate that development of the land would preclude future transportation use and that such development is imminent. Advance acquisition is not permitted for the sole purpose of reducing the cost of property for a proposed project.
Examples include:
ROW acquisition only for bikeway/pedestrian facility (no construction
(13) Actions described in 23 CFR 771.117 (c)(26), (c)(27), and (c)(28) that do not meet the constraints listed in 23 CFR 771.117(e).
Project types that exceed thresholds in Appendix A
Project types that exceed thresholds in Appendix B
CE Action - D1 Thresholds The DEC shall confirm that the project meets the criteria of a D1 action by ensuring:
Only Minor right-of-way (ROW) acquisition involving a maximum of two relocations. (The context and intensity of the impact may require the CE to be elevated to the next higher level. Confirmation (by ODOT) shall be made that the acquisition will not result in significant impacts to the community or environment ).
Waterways – Individual permit is acceptable but wetland impacts must be limited to less than 3 acres of Category 1 and 2 wetlands and/or up to 0.5 acres of Category 3 wetlands.
No Section 106 impacts that would warrant the preparation of Archaeological Data Recovery recommendations.
Section 4(f) impacts are limited to Programmatic or de minimis Section 4(f) impacts.
That there is no public or agency controversy on environmental grounds (no opposition from organized groups or agencies and no unresolved environmental coordination).
No impacts to federally threatened or endangered species/critical habitat that results in a Biological Opinion; or
No disproportionately high and adverse impacts relative to low-income and/or minority populations.
No substantial floodplain impacts
If a Coast Guard Permit is required contact ODOT-OES for additional guidance regarding applicability of the Memorandum of Agreement Between The United States Coast Guard and The Federal Highway Administration To Coordinate and Improve Bridge Planning and Permitting, executed January 14, 2014.
CE Action - D2 Thresholds It shall be confirmed by ODOT-OES that the project meets the criteria of a D2 action. The CE must include documentation demonstrating that the following concerns have been addressed.
Right-of-way (ROW) acquisition involving a maximum of eight relocations. (The context and intensity of the impact may require the CE to be elevated to the next higher level. Confirmation shall be made to determine that the acquisition will not result in significant impacts to the community or environment.)
Section 106 impacts, provided necessary documentation of consultation is included in the project files as required by 36 CFR Part 800.
Wetland impacts of 5 acres or less. (Enough information to issue a wetland finding must be included in the CE documentation.)
94 | P a g e
Substantial public or agency controversy on environmental grounds (strong opposition from organized groups or agencies). CE document must include documentation demonstrating that the public or agency concerns have been addressed.
Programmatic or de minimis Section 4(f) impacts provided Programmatic Section 4(f) documentation has been approved by OES or de minimis Section 4(f) has been approved by FHWA.
Individual Section 4(f) impacts/use as long as a draft of the D2 CE is provided to FHWA for review along with the Individual 4(f) packet.
D2 projects cannot involve the following:
Any disproportionately high and adverse impacts on low-income and/or minority populations.
Quantitative PM 2.5 Hotspot Analysis.
Quantitative MSAT Analysis.
Unresolved substantial public or agency controversy on environmental grounds.
Substantial/significant floodplain impact
CE Action - D3 Thresholds If FHWA has an interest in the project for environmental reasons or if the project exceeds the thresholds listed for D2 actions but still meets the intent of 23 CFR 771.117(d), the CE will require the review and approval by FHWA. In addition, for actions that meet the intent of 23 CFR 771.117(d) but that are not specifically listed above, OES may request FHWA to review and approve a CE for the project by providing FHWA with project and environmental analysis documentation and a certification stating that the project meets the criteria for a CE.