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Tennessee Environmental Procedures Manual

Chapter 6: Prepare Environmental Documentation

6.5 Continuous Activities and Reevaluations

The approved CE, FONSI, or ROD documents represent final environmental clearances for a project under NEPA. Given that many projects require extensive time to develop and many projects undergo staged construction, there is often a lag time between environmental approvals and construction letting. Right-of-way acquisition, utility relocations, design, and other routine project activities that occur after the environmental clearance are evidence of continuous activity on a project. The letting of subsections of the project for construction also constitutes evidence of continuous activity.

During the project development period between the environmental clearance and project construction, the environmental baseline conditions of the project area may change, as well as environmental regulations and policies that govern impact analyses and the development of mitigation measures. There may also be changes to the project during the project development and design process that require additional review of environmental impacts.

CEQ has anticipated two forms of documentation for confirming that environmental clearances remain current: Reevaluations and Supplemental EA/EISs.

6.5.1 Reevaluations

After the approval of an EIS, EA, or CE (including a Programmatic CE), 23 CFR 771.129(c) requires that TDOT will have to consult with FHWA prior to requesting any major approval or grant, to establish whether or not the approved environmental document or CE designation remains valid. The FHWA must assure that the environmental documentation for the proposed action is still valid, prior to proceeding with major project approvals or authorizations. This is accomplished through a reevaluation.

6.5.1.1 Reevaluation Timing and Purpose

TDOT will conduct a reevaluation of the environmental decision document prior to FHWA authorization of right-of-way funds for property acquisition. This is referred to as a "right-of-way reevaluation."  The reevaluation for a CE, EA and EIS will be submitted to the FHWA Division Office for review and approval, and must be approved prior to authorization of right-of-way funds. For a Programmatic CE, the reevaluation is not submitted to FHWA and TDOT maintains the documentation in the project files. If less than three years has elapsed since environmental approvals or CE designation, a written reevaluation will not be required at that time.

After a period of three years has elapsed since receiving environmental approvals or an approved right-of-way reevaluation, TDOT will conduct a reevaluation of the CE, EA or EIS prior to FHWA authorization of construction funds before the project letting. This is referred to as a "construction reevaluation." This will be submitted to the FHWA Division Office for review and approval, and must be approved prior to authorization of construction funds. For a Programmatic CE, the reevaluation is not submitted to FHWA and TDOT maintains the documentation in the project files. If less than three years has elapsed since environmental approvals or approval of a right-of-way reevaluation, a written reevaluation will not be required at that time.

The written reevaluation documents a decision being made. The purpose of the reevaluation is two-fold:

  • To ensure that the project design is being developed in a way that is consistent with previous commitments in the CE, FONSI or ROD; and
  • To address changes in the design, planned mitigation measures, and the project area, as well as for managing the unanticipated late discovery of sensitive environmental resources.

In addition, as required by 23 CFR 771.129, a written reevaluation is necessary for a project requiring an EIS in the following circumstances:

  • An acceptable FEIS has not been received by FHWA within three years after the date of circulation of the DEIS. The purpose of this reevaluation is to determine whether or not to supplement the draft EIS or to develop a new draft EIS; or
  • Before further approvals are granted if major steps to advance the action (authority to undertake final design, acquire a significant portion of the right-of-way, approval of plans, specifications and estimates) have not occurred within three years after the approval of the FEIS, supplemental FEIS or the last major FHWA approval or grant.

The written reevaluation of the FEIS is written by the TDOT Environmental Division staff in consultation with FHWA, and addresses all current environmental requirements. The entire project is revisited to assess any changes in the project or project area that have occurred and their effect on the adequacy of the FEIS.

If there are new significant impacts, then a Supplemental EIS or a new EIS must be prepared. That decision is made by FHWA in consultation with TDOT, and is documented in the written reevaluation.

6.5.1.2 Reevaluation Format and Content

According to the Technical Advisory, written reevaluations do not have a required format, although TDOT typically uses a memorandum or letter format. Because the original NEPA document is the approved environmental documentation, the approved document is not rewritten or amended. Instead, the reevaluation is documented separately and included in the project files.

The reevaluation focuses on changes in the project, its surroundings and impacts, and any new issues identified since the last environmental documentation. To accomplish the reevaluation, TDOT reviews current right-of-way or construction plans to ensure that no significant changes have occurred, and it may be necessary to conduct field reviews, additional studies and agency coordination. The results of these reviews, studies and written coordination are included in the reevaluation documentation.

Additional public involvement that has occurred since approval of the final environmental document should also be described. TDOT documents and describes all efforts undertaken to reevaluate the project. The reevaluation must state that no significant changes have occurred, if that is the final determination. If there are any changes, such as new construction near the proposed improvement, the details are discussed in the reevaluation letter, and it is noted how the proposed project will change as a result.

The written reevaluation must also add a PM 2.5 Hot Spot Analysis for any environmental document in the appropriate counties that were approved prior to April 6, 2006. See Table 5-7 for a list of Tennessee counties that have been designated as being non-attainment for PM 2.5.

Projects are often broken into smaller sections for funding and/or construction purposes. The reevaluation for the various sections must consider the entire project addressed in the original environmental document. The reevaluation should mention which section(s) of the project is now being advanced to right-of-way or construction plans.

6.5.1.3 Approval of Reevaluation

The written reevaluation is prepared by TDOT Environmental Division staff and submitted to the FHWA Division for review and approval. A copy of the written reevaluation and the FHWA approval are placed in the project files.

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6.5.2 Supplemental EIS

6.5.2.1 SEIS Purpose and Scope

A Supplemental EIS (SEIS) is necessary when major changes, new information, or further developments occur to the project that would result in significant environmental impacts not identified in the most recently distributed DEIS or FEIS (40 CFR 1502.9(c)). The SEIS does not normally require re-initiating the environmental process; instead, the SEIS is for the last approval (DEIS, FEIS or ROD). The need for a SEIS may be revealed through a reevaluation, as discussed above in Section 6.5.1.

A SEIS is needed in the following cases:

  • Changes are made in the design or scope of the project after the DEIS, FEIS, or ROD, and these changes would result in significant environmental impacts not evaluated in the EIS; or
  • New information or circumstances relevant to the environment would result in significant adverse environmental impacts not evaluated in the DEIS or FEIS.

A SEIS is not needed if:

  • The changes to the proposed action, new information, or new circumstances would result in a lessening of the adverse environmental impacts evaluated in the EIS without causing other environmental impacts that are significant and were not evaluated in the EIS; or
  • FHWA decides to approve an alternative that was fully evaluated in an approved FEIS but not identified as the preferred alternative. In this case, a revised ROD would be issued.

When the significance of the new impacts is uncertain, TDOT Environmental Division staff develop the appropriate environmental studies to assess the impacts of the changes, new information or new circumstances. In some instances, FWHA may direct that an EA be prepared.

In some cases, a SEIS may be required to address issues of limited scope, such as the extent of proposed mitigation, a location change or a design variation for a limited portion of the overall project. In these situations, the preparation of the SEIS does not necessarily prevent the granting of new approvals, require the withdrawal of previous approvals, or require the suspension of project activities not directly affected by the supplement.

6.5.2.2 SEIS Format and Content

The Technical Advisory states that if the project changes or new information does not result in new or different significant environmental impacts, FHWA should document that determination. After a FEIS, the documentation would take the form of a note to the files. For a DEIS, the documentation could be a discussion in the FEIS.

The supplement is to be developed using the same process and format as the original document (i.e., DEIS, FEIS and ROD), except that scoping is not required. Some projects, however, may warrant scoping.

The SEIS should provide sufficient information in order to briefly describe the proposed action, the reasons why a supplement is being prepared, and the status of the previous environmental document.

The SEIS should reference the valid portions of the previous EIS rather than repeating them. Unchanged impacts may be briefly summarized and referenced. The SEIS should also address new environmental requirements that have become effective since the previous EIS was prepared, to the extent that the new regulations apply to the portion of the project that is being evaluated and is relevant to the subject of the SEIS. The SEIS should also summarize the results of any reevaluations that have been performed for portions of, or the entire project. The SEIS will thus represent an up-to-date consideration of the project and its environmental effects.

6.5.2.3 Approval of SEIS and Distribution

The SEIS will be reviewed and distributed in the same manner as a DEIS and FEIS.

According to the Technical Advisory, the transmittal letter of the SEIS should indicate that copies of the EIS being supplemented are available and will be provided to anyone who requests it.

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