Chapter 3: NEPA Process Options
3.5 Categorical Exclusions
A Categorical Exclusion (CE) is a category of actions that do not individually or cumulatively have a significant effect on the environment. Under 23 CFR 771.117 and CEQ Section 1508.4, and based on past experience with similar actions, FHWA has developed lists of actions that are to be documented as a CE. They are actions which do not:
- Induce significant impacts to planned growth or land use for the area;
- Require the relocation of significant numbers of people;
- Have a significant impact on any natural, cultural, recreational, historic or other resource;
- Involve significant air, noise, or water quality impacts;
- Have significant impacts on travel patterns; and
- Otherwise, either individually or cumulatively, have any significant environmental impacts.
CEs are divided into two categories, the "C" list and the "D" list, which are discussed in the following section. TDOT has developed templates for each type of CE.
3.5.1 "C" List CEs
23 CFR 771.117(c) lists 20 actions that are non-construction or limited construction activities - the "C" list. These actions generally meet the criteria for a CE determination in the CEQ regulation (Section 1508.4) and normally do not require any further NEPA approvals by FHWA, although documentation should still be completed and retained by TDOT. This list is limited to the following specific actions:
- Activities which do not involve or lead directly to construction, such as planning and technical studies; grants for training and research programs; research activities as defined in 23 U.S.C. 307 [repealed in 1998]; approval of a unified work program and any findings required in the planning process pursuant to 23 U.S.C. 134; approval of statewide programs under 23 CFR part 630; approval of project concepts under 23 CFR part 476; engineering to define the elements of a proposed action or alternatives so that social, economic, and environmental effects can be assessed; and Federal-Aid Highway System revisions which establish classes of highways on the system;
- Approval of utility installations along or across a transportation facility;
- Construction of bicycle and pedestrian lanes, paths, and facilities;
- Activities included in the State's "highway safety plan" under 23 U.S.C. 402;
- Transfer of Federal lands pursuant to 23 U.S.C. 317 when the subsequent action is not an FHWA action;
- The installation of noise barriers or alterations to existing publicly-owned buildings to provide for noise reduction;
- 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;
- Emergency repairs under 23 U.S.C. 125;
- Acquisition of scenic easements;
- Determination of payback under 23 CFR part 480 for property previously acquired with Federal-aid participation;
- Improvements to existing rest areas and truck weigh stations;
- Ridesharing activities;
- Bus and rail car rehabilitation;
- Alterations to facilities or vehicles in order to make them accessible for elderly and handicapped persons;
- Program administration, technical assistance activities, and operating assistance to transit authorities to continue existing service or increase service to meet routine changes in demand;
- 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;
- Track and railbed maintenance and improvements when carried out within the existing right-of-way;
- Purchase and installation of operating or maintenance equipment to be located within the transit facility and with no significant impacts off the site; or
- Promulgation of rules, regulations, and directives.
3.5.2 "D" List CEs
The second category of CEs, as defined in 23 CFR 771.117(d), includes those actions with a higher but still minor potential for environmental impacts. The "D" list includes a list of 12 actions that past experience has shown are appropriate for a CE classification.
This level of CE includes, but is not limited to, the following 12 actions:
- Modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes (e.g., parking, weaving, turning, climbing);
- Highway safety or traffic operations improvement projects including the installation of ramp metering control devices and lighting;
- Bridge rehabilitation, reconstruction or replacement or the construction of grade separation to replace existing at-grade railroad crossings;
- Transportation corridor fringe parking facilities;
- Construction of new truck weigh stations or rest areas.
- 6Approvals 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;
- Approvals for changes in access control;
- 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;
- 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;
- 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;
- 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; or
- Acquisition of land for hardship or protective purposes; advance land acquisition loans under section 3(b) of the UMTA [FTA] Act. 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 can document on the basis of health, safety or financial reasons that remaining in the property poses an undue hardship compared to others. 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.
Other projects, pursuant to 23 CFR 771.117(d), may also qualify as CEs if appropriately analyzed, documented and approved by FHWA at the Division level.
TDOT must submit to FHWA documentation that demonstrates that the specific conditions or criteria for these CEs are satisfied and that significant environmental effects will not result. The level of information is dependent upon the action's potential level of impact, controversy, or inconsistency with other agencies' environmental requirements. Where adverse environmental impacts are likely to occur as a result of the project, the level of analysis should be sufficient to define the extent of the impact, identify appropriate mitigation measures and address known and foreseeable agency and public concerns.
At a minimum, the CE documentation would include the following:
- Description of the existing conditions, including the immediate surrounding area;
- Description of the proposed action, and if possible the approximate length of the proposed improvement;
- Discussion of any specific areas of concern, such as wetlands, relocations or Section 4(f);
- A list of other Federal actions required for the proposal; and
- Any concurrence letters from the State Historic Preservation Officer or SHPO (for archaeological and/or historic architectural resources) and U.S. Fish and Wildlife Service (for endangered species).
The documentation should also address unusual circumstances associated with the project, if any. Where there are unusual circumstances, TDOT should undertake sufficient early coordination with agencies, public involvement and environmental studies to determine whether there is the potential for significant impacts. If it is determined that the project is not likely to have significant impacts, the results of the environmental studies, coordination and public involvement should adequately support that conclusion and should be included in the CE documentation that is submitted to FHWA. The CE documentation may be in a letter format or a report format that is transmitted via letter to FHWA. The transmittal includes a cover letter signed by the Environmental Division Director or the Director's designee. TDOT has developed an electronic template for the D-list CE, which will replace the letter or report format.
3.5.3 Programmatic CEs
Some types of projects are processed programmatically. In 1997, FHWA and TDOT entered into a "Programmatic Categorical Exclusion Agreement, " in which TDOT and FHWA agreed in advance with the classification of certain projects as identified in 23 CFR Part 771.117(d) as CEs, if the project satisfies the following conditions:
- The action does not have significant environmental impacts as described in 23 CFR 771.117(a).
- The action does not involve unusual circumstances as described in 23 CFR 771.117(b).
- The action does not involve the following:
- The acquisition of more than minor amounts of right-of-way or temporary easements.
- The displacements of any commercial or residential occupants.
- The use of properties protected by Section 4(f), 49 USC 303.
- A determination of adverse effect by the SHPO.
- A U.S. Coast Guard construction permit or an individual U.S. Army Corps of Engineers Section 404 permit.
- Work encroaching on a regulatory floodway or work affecting the base floodplain (100-year flood) elevations of a water course or lake.
- Construction in, across or adjacent to a river designated as a component of the National System of Wild and Scenic Rivers.
- Work in wetlands.
- A change in access control.
- A known hazardous material site within the proposed right-of-way.
- The action conforms to the State Implementation Plan (SIP) in air quality nonattainment areas.
- The action does not involve federally listed threatened or endangered species or their critical habitat.
These programmatic CEs are completed by documenting in the Environmental Division files that all of the above conditions are met. All determinations made by TDOT under this programmatic classification shall be documented and made available for FHWA review upon request. TDOT has developed an electronic template for use in documenting a Programmatic CE.
3.5.4 Unusual Circumstances
According to 23 CFR 771.117(b), an individual action that would normally be classified as a CE might involve unusual circumstances that would require undertaking certain environmental studies to determine whether a CE classification is appropriate. That decision would be made by FHWA based on input from TDOT. Such unusual circumstances include:
- 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.