Programmatic Categorical Exclusion Decision-Making Guide

Transcription

1 Programmatic Categorical Exclusion Decision-Making Guide Version: 05/09/2017 This Draft PCE Decision-Making Guide is being test-driven during Spring 2017 training sessions. Questions and suggestions are strongly encouraged in order to make the guide work most effectively for user needs. MnDOT District staff should contact Deb Moynihan or with comments. FHWA and MnDOT have a Programmatic Agreement whereby MnDOT can make a determination that certain projects are Categorical Exclusions (CEs) on FHWA s behalf. These projects are referred to as Programmatic Categorical Exclusions (PCEs). MnDOT Trunk Highway Projects: This guide is intended for MnDOT project managers to use to determine if the Categorical Exclusion document can be approved at the District level or must be sent to OES and FHWA for approval. MnDOT State Aid for Local Transportation Projects: All projects proposed by local agencies must complete a Project Memorandum, unless the type of work meets the thresholds listed on the Environmental Documentation for Federal Projects with Minor Impacts. The Project Memorandum is used to document the project for multiple purposes including the NEPA process, consistency with the project proposed in the State Transportation Improvement Program (STIP) and verification that the project meets State Aid Design Standards. FHWA has delegated signature authority to MnDOT for projects that meet the threshold for a PCE (MnDOT and FHWA often collaborate on determining if the PCE threshold is met). This guide will be used by State Aid Project Development Engineers to determine if they can sign the environmental document on behalf of FHWA or if it needs to be approved by FHWA. Persons preparing a project memo for a State Aid review may use this Checklist B to determine if additional approval time is need in the schedule for FHWA review and approval. This guide is a companion to the Environmental Document Decision Tree (see the Highway Project Development Process [HPDP] website) and provides additional detail for the steps that project staff can follow to determine (1) if a project can be processed as PCE, i.e. approved by MnDOT, vs a nonprogrammatic CE that must be approved by FHWA and (2) how to document the PCE. These steps listed in this PCE Decision-making Guidance are for FHWA Categorical Exclusion projects only. Refer to the Environmental Document Decision Tree first to determine if an FHWA undertaking likely requires an EIS or an EA (rather than a CE document), including whether there are any unusual circumstances under 23 CFR (b), i.e. (1) significant environmental impacts; (2) substantial controversy on environmental grounds; (3) significant impact on properties protected by Section 4(f) or Section 106; or (4) inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to the environmental aspects of the action. Also refer to the Environmental Document Decision Tree to identify whether state environmental review is required or advisable. PCE GUIDANCE Draft May 9, 2017 Page 1 of 25

2 Step 1: Is the project on either the c-list or d-list? Only project types specified in either 23 CFR (c) or 23 CFR (d) can potentially be processed under the Programmatic Categorical Exclusion (PCE) Agreement (subject to Step 2). These project types are often referred to as the c-list and d-list and are included in Appendices C and D to this PCE Decision-making Guidance. Step 1 in determining whether a project can be processed as a PCE is identifying the appropriate 23 CFR (Categorical Exclusion) action (if any) for the project. 1-A. Does the project take place entirely within the existing operational right of way 1? If yes, cite 23 CFR (c)(22) on the CE form and go to Step 2. If no, go to 1-B. 1-B. 1-C. Does the project meet the definition of any of the remaining project types listed under 23 CFR (c) or under 23 CFR (d)? If yes, pick the best description of the project, cite the relevant item on the CE form and go to Step 2. Important: 23 CFR (c)(23) is only available to be used for local projects processed through SALT. Contact SALT for more information. 23 CFR (c)(23) will not be used as a citation for MnDOT Trunk Highway projects at this time. If no, go to 1-C. Consult with OES to determine if the CE is the appropriate class of action. If yes, cite 23 CFR (a) on the CE form. This CE will need to be approved by FHWA. Projects with this citation cannot be processed as PCEs. This will typically be limited to actions that were part of the Attachment A to the 1998 PCE Agreement that do not fit any current c-list or d-list project types. If no, the project will not be a CE. Note: The 1998 PCE Agreement also covered 24 actions that were not specified in 23 CFR These additional actions were known in the 1998 agreement as Attachment A. See Appendix A to this PCE Decision-making Guidance for cross-reference of these 1989 Attachment A additional actions to current 23 CRF (c) or (d) project types. There is no list of additional actions in the current PCE Agreement. If a project is not on the c-list or d-list, it cannot be processed as a PCE. Step 2: Does the project meet Attachment B criteria? If the proposed action fits a project type specified in 23 CRF (c) or 23 CFR (d), determine if the project meets the criteria/conditions of Attachment B of the current PCE Agreement. 1 Operational right of way is not the same thing as the existing right of way. Read 23 CFR (c)(22) carefully to be sure the definition of operational right of way applies. Also see Appendix E for examples [THIS IS IN PROCESS]. If the definition of being within the operational right of way does apply, include information, including figures, in the CE document project description that shows how the project fits into the operational right of way. Accurate right of way requirements and construction limits (worst-case) are critical when using this CE, because if new right of way is later required, then the CE citation will no longer apply. If this is a concern, consider selecting a different applicable c-list or d-list citation. PCE GUIDANCE Draft May 9, 2017 Page 2 of 25

3 Attachment B is a list of environmental thresholds (criteria/conditions) that a project s impacts must be within for the project to be processed as a PCE. Attachment B includes 21 environmental threshold subject areas. For each of these, the tables below present the relevant PCE criteria/conditions and guidance (in italics) on how to determine/document whether or not the criteria/condition is met. (Pay attention to the ANDs and ORs ). For Trunk Highway projects, responses to the Early Notification Memo (ENM) will provide useful information for these subject areas. The Attachment B Checklist form is included as Appendix B to this PCE Decision-making Guidance. Gather information on potential impacts, complete the Attachment B Checklist form, and go to Step 3. Section 4(f) If the action has any kind of Section 4(f) use (including de minimis), it cannot be processed as a PCE. Attachment B Environmental Threshold Guidance -OR- -AND/ OR- The project does not use Section 4(f) lands or properties. The project is an independent bikeway/walkway covered by the FHWA Section 4(f) Statement and Determination for Independent Bikeways or Walkways (Negative Declaration statement) dated May 23, The HPDP guidance on Section 4(f) provides information on possible Section 4(f) resources, how use is defined, and other relevant considerations. Projects with any Section 4(f) use, including de minimis use, may not be processed as PCEs. If the project has the potential to impact a Section 4(f) resource, contact OES (Trunk Highway) or SALT (local program) for assistance. The FHWA Negative Declaration/4(f) statement for independent bikeway or walkway construction projects only applies when the sole scope of the project is to provide bicycle or pedestrian facilities, without introducing elements to address vehicular traffic (e.g. crosswalks, signals to control vehicular traffic), in contrast to a project where the primary purpose is to serve motorized vehicles. Written concurrence with the assessment of effects from the official having jurisdiction (OWJ) over the Section 4(f) property must also be obtained and included as an attachment to the PCE document. Consult with OES (Trunk Highway) or SALT (local program) before considering use of this criterion. PCE GUIDANCE Draft May 9, 2017 Page 3 of 25

4 The project meets temporary occupancy conditions that do not constitute a Section 4(f) use per 23 CFR (d). Section 23 CFR (d) provides the conditions under which temporary occupancies of land are so minimal as to not constitute a use within the meaning of Section 4(f). These conditions are: Duration is temporary (less than needed for project construction) No change in land ownership Scope of work is minor No anticipated permanent adverse physical impacts No temporary or permanent interference with the activities or purpose of the resource The land used will be fully restored (to a condition at least as good as before the project) There is documented agreement from the OWJ regarding the above conditions. All of these conditions must be met. Actions with only temporary occupancy of Section 4(f) property (as defined above) may be processed as a PCE; however, consult with OES to ensure the meets these conditions. The written OWJ agreement that the conditions of (d) are being met must be attached to the PCE as documentation. 2 2 Note: There are several references in these tables advising where specific correspondence, assessments, or other information must be attached to the PCE or included in the project file (as documentation that the relevant PCE criterion has been met). Also note that these items would also need to be attached to or included in the file for any type federal environmental document, regardless of whether it is a PCE, a non-programmatic CE, an EA or an EIS. PCE GUIDANCE Draft May 9, 2017 Page 4 of 25

5 Section 6(f) Attachment B Environmental Threshold Guidance The project requires no acquisition of real property interest subject to Section 6(f) or encumbered by similar public-use funding that restricts conversion to other uses. Any project that acquires real property interest from a Section 6(f) or similarly protected resource will almost certainly already constitute a use under Section 4(f), and therefore could not be processed as a PCE based on that topic. However, users must also confirm whether or not this criterion is met. Including this in the checklist allows for easier update should the Section 4(f) criteria change. Acquisition of real property interest includes fee title acquisition and permanent easement. The HPDP Section on 6(f) provides information about determining whether a property has been acquired under the protection of Section 6(f) or similar with restrictions or covenants on the property and how to document the finding PCE GUIDANCE Draft May 9, 2017 Page 5 of 25

6 Historic/Archeological All Trunk Highway projects and all federally funded State Aid projects must submit the appropriate form for Archeological/Historical review to the MnDOT Cultural Resources Unit (CRU) (Early Notification Memo (EMN) for Trunk Highway Projects and Historical/ Archeological Review Request for State Aid projects.) Attachment B Environmental Threshold Guidance -OR- The provisions of the National Historic Preservation Act have been satisfied by a Section 106 finding of no properties. For NRHP-listed or eligible properties other than historic bridges, the provisions of the National Historic Preservation Act have been satisfied by a Section 106 finding of no effect or no adverse effect per the current Programmatic Agreement (PA) among FHWA, the Minnesota Historic Preservation Office (MnHPO), the Advisory Council on Historic Preservation (ACHP), the United States Army Corps of Engineers (USACE) and MnDOT. -AND- For NRHP-listed or eligible historic bridges, the provisions of the National Historic Preservation Act have been satisfied by a Section 106 finding of no effect per the current PA among FHWA, SHPO, ACHP, USACE and MnDOT. -AND- No Section 106 Agreement (i.e. Memorandum of Agreement or Programmatic Agreement) or known post-nepa plan review by CRU and the MnHPO or a Tribal Historic Preservation Office (THPO) is deemed appropriate by MnDOT and FHWA. The CRU Section 106 effect determination of no properties must be attached to the PCE as supporting documentation. The CRU Section 106 effect determination of no effect or no adverse effect must be attached to the PCE as supporting documentation. If the determination is no adverse effect, the MnHPO (and any appropriate THPO) concurrence letter(s) must be attached to the PCE as well. A project for which the no adverse effect determination letter clearly imposes conditions on the determination (sometimes informally referred to as a conditional no adverse effect ) cannot be processed as a PCE. The CRU Section 106 effect determination of no effect must be attached to the PCE as supporting documentation. Note: No effect and no adverse effect are not the same determination. There may be cases where there is no determination of an adverse effect, but an MOA or PA is to be developed or other post-nepa plan review is deemed appropriate anyway in order to consider or reconsider the effect determination later in project development. This decision would be documented in the CRU letter. PCE GUIDANCE Draft May 9, 2017 Page 6 of 25

7 Threatened and Endangered Species All federal undertakings must submit the appropriate form Section 7 review to the MnDOT OES Wildlife Ecologist (Early Notification Memo (EMN) for Trunk Highway Projects and Threatened and Endangered Species Review Request for State Aid projects). Attachment B Environmental Threshold Guidance -OR- -OR- The provisions of the Endangered Species Act (ESA) have been satisfied by a Section 7 determination of no effect to threatened or endangered species or critical habitat. The provisions of the ESA have been satisfied by a Section 7 determination, per written correspondence with the USFWS, of may affect, not likely to adversely affect threatened or endangered species or critical habitat, or may affect but will not cause prohibited take of the Northern Long-eared Bat (NLEB). The provisions of the ESA have been satisfied by a Section 7 determination of no jeopardy for any species proposed for listing under the ESA. The MnDOT OES Wildlife Ecologist determination of no effect must be attached to the PCE as supporting documentation. The MnDOT OES Wildlife Ecologist determination of may affect, not likely to adversely affect or, for the NLEB, may affect but will not cause prohibited take, and the written concurrence from the U.S. Fish and Wildlife Service must be attached to the PCE as supporting documentation. If the project requires formal consultation with the U.S. Fish and Wildlife Service, it cannot be processed as a PCE. The MnDOT OES Wildlife Ecologist determination of no jeopardy must be attached to the PCE as supporting documentation. PCE GUIDANCE Draft May 9, 2017 Page 7 of 25

8 Right of Way Attachment B Environmental Threshold Guidance -OR- -AND- -AND- -AND- The project does not require any new right of way, permanent easement, or temporary easement. The project requires only minor amounts of new right of way, permanent easement or temporary easement, defined as -Up to 5 acres per linear mile (absolute, not average), but total permanent not more than 25 acres plus total temporary not more than 40 acres. OR -Up to 10 acres (permanent plus temporary) for spot improvements (such as bridge replacement). *This is an absolute of five acres per linear mile, not an average of five acres per mile over the entire length of the project. The project requires no relocations of residences or businesses. Change in direct access to property is minor. The definition of new right of way includes both fee title acquisition and forms of permanent easement. The PCE right of way narrative will include, but not be limited to, itemizing permanent vs. temporary right of way impact in order to demonstrate compliance with the definition of minor amounts of right of way. The right of way acreages listed in the threshold are for the entire FHWA undertaking, e.g. if there is a bridge replacement in the middle of a reconstruction or expansion project, the undertaking is no longer a spot improvement. SELF-EXPLANATORY. Direct access means a driveway or curb cut. This threshold does not apply to closure of median openings. A minor change is limited to minimally moving a direct access. Removal of a direct access point, even if there is another access to the property is not within the PCE meaning of minor and cannot be processed as a PCE. PCE GUIDANCE Draft May 9, 2017 Page 8 of 25

9 Property acquisition or change in access to property required for the project will not affect the use of the property. Actions that have the potential to affect the use of the property include farm severance, impacts to onsite parking, storage or internal circulation, and similar changes that negatively affect the functionality of the site for its existing use. Contact OES to discuss the particulars of the project if there are questions. If the project does include the actions defined above, but project staff concludes (following site review, communication with affected property owners, and input of knowledgeable staff) that they will not affect the use of the property, a brief summary of what was considered, including outreach, and rationale for the conclusion will be included in the project file. Highway Access Change Attachment B Environmental Threshold Guidance -AND- The project does not add or remove a ramp on an existing expressway or freeway interchange. The project does not add an interchange to an expressway or freeway. This includes permanent or temporary addition or removal of ramps. SELF-EXPLANATORY. PCE GUIDANCE Draft May 9, 2017 Page 9 of 25

10 Pedestrian/Bicycle Access Change Attachment B Environmental Threshold Guidance -AND- The project does not permanently remove existing pedestrian, bicycle, or transit facilities. The project does not permanently impede safe and reasonable access to existing pedestrian, bicycle or transit facilities. This threshold does not include minor realignment/relocation of existing pedestrian or bicycle facilities that function in a similarly convenient manner as the existing situation. For example, a minor realignment of a sidewalk or bike trail that would not result in a more circuitous route does not constitute removal of a facility. Similarly, moving of a bus stop shelter to a nearby location does not constitute removal of a transit facility. This threshold addresses situations where, while the project does not remove an existing sidewalk, bike trail or bus shelter, it does create a permanent situation that makes it substantially more difficult for people to continue to use that facility. If any of the improvements listed in the project description/shown on the project map would reasonably raise this question, but after consideration of project area specifics, it is determined that the threshold is met, the PCE documentation must include the rationale for the conclusion. Examples of project improvements that might raise this question include those that cause transit line reroutes, permanently create longer (>1/4 mi. increase) ped/bike routes, or substantially greater roadway crossing distances for pedestrians. PCE GUIDANCE Draft May 9, 2017 Page 10 of 25

11 Traffic Disruption Attachment B Environmental Threshold The project does not involve construction of temporary access or closure of an existing road, bridge or ramp. Guidance If the project does not include construction of temporary access or closure/detouring of an existing road during construction, this must be clear in the project description, and no additional specific documentation for this item need be kept in the project files. -OR- The project does involve construction of temporary access or closure of an existing road, bridge or ramp, but the following conditions are met: For projects outside of the boundaries of a metropolitan planning organization (MPO), temporary access would not last for more than one construction season and road, bridge or ramp closure would not result in a detour that would last for more than one construction season or increase (one-way, out-ofdirection) travel distance greater than 5 miles in an urban area or 25 miles in a rural area. For projects within the boundaries of an MPO, the project either would not require a full traffic management plan (TMP) per the Minnesota Work Zone Safety and Mobility Policy (or subsequent replacement policy) or the required full TMP will maintain the number of pre-project through lanes during a.m. and p.m. weekday peak periods for the duration of the project. For detours, the less than one construction season and the travel distance thresholds must both be met for the undertaking to be processed as a PCE. Information on plans for access and traffic management that support the conclusion regarding these time and distance thresholds will be included in the project file. If the project does not require a full TMP per the Minnesota Work Zone Safety and Mobility Policy (or subsequent replacement policy), no specific documentation for this item need be kept in the project file. Projects that require only a Basic TMP per the Policy meets this threshold. In other words, a full TMP is any TMP other than a basic TMP per the cited Minnesota policy. If the project does require a full TMP per the Minnesota Work Zone Safety and Mobility Policy (or subsequent replacement policy), the project file will include information on planned TMP content that supports the statement that the number of preproject through lanes will be maintained during peak periods for the duration of the project. PCE GUIDANCE Draft May 9, 2017 Page 11 of 25

12 Contamination Hazards Attachment B Environmental Threshold Guidance The project does not have a high risk of causing direct or indirect impacts to human health or sensitive environmental resources due to encountering contamination or hazardous materials. The HPDP Section of Contaminated Properties provides detail for the OES Environmental Investigation Unit (EIU) risk assessment for Trunk Highway projects. The District initiates this process by submitting the Early Notification Memo and, for projects that would add new property into the state trunk highway system, Environmental Due Diligence (EDD) form(s). An EIU assessment of high risk cannot be processed as a PCE. Documentation of the EIU risk assessment must be included in the project file. For local program projects, the State Aid manual provides guidance regarding types of properties that are high risk for hazardous material involvement, e.g. current or former gas stations, railroads, landfills, illegal dumping sites, industrial or commercial areas, etc., The MPCA What s In My Neighborhood website provides useful information about contaminated sites. PCE GUIDANCE Draft May 9, 2017 Page 12 of 25

13 Farmland While not a PCE issue, project staff should be aware that, if the project involves acquisition of over 10 acres of agricultural land and a state EAW is not being prepared, the Minnesota Department of Agriculture (MDA) must be given the opportunity to review the project to determine if other alternatives existing to avoid converting the agricultural lands to non-agriculture use, per Minnesota Statutes , the State Agricultural Land Preservation and Conservation Policy. The HPDP section on Farmland provides templates for soliciting MDA comment on projects that acquire over 10 acres of agricultural land for which an EAW is not being prepared. Attachment B Environmental Threshold Guidance -OR- -OR- The Farmland Protection Policy Act (FPPA) does not apply. The project will not involve acquisition of farmland. Form AD-1006 or Form NRCS-CPA- 106 has been completed and provided to NRCS. This option is only for projects located entirely within the urbanized area boundary (see Census maps) of a metropolitan planning organization (MPO) area. For purposes of the PCE determination, farmland is defined per the Federal Farmland Protection Policy Act (FPPA), and includes prime farmland, unique farmland, and land of statewide or local importance. Farmland subject to FPPA requirements does not have to be currently used for cropland. It can be forest land, pastureland, cropland, or other land, but does not include water or urban built-up land. The HPDP section on Farmland provides information as to how to determine the presence of FPPA-defined farmland in the project area. The USDA has a website for mapping FPPA-defined farmland. If the project does involve acquisition of farmland as defined by the FPPA, a copy of the completed AD-1006 form or NRCS-CPA-106 form and its transmittal to the NRCS the Natural Resources Conservation Service must be attached to the PCE for documentation. ( transmittal is sufficient.) The AD-1006 form is the standard form and can be used for any project. The NRCS-CPA-106 form is for corridor type projects. The HPDP section on Farmland has links to these forms, including instructions for their use. No response from NRCS is necessary, however if a response is received, it must also be attached to the PCE for documentation. PCE GUIDANCE Draft May 9, 2017 Page 13 of 25

14 Section 404 Attachment B Environmental Threshold Guidance -OR- -AND- The project does not involve placement of fill into Waters of the U.S. The project is anticipated to be covered by a USACE Section 404 Nationwide or Regional General Permit. No Section 404 permit is required if there are no USACE jurisdictional wetlands affected by the project. If a Section 404 permit is required for the project, the anticipated type of Section 404 permit (Regional General Permit, Letter of Permission (LOP), or Standard Individual Permit) must be identified. If the project requires an LOP or Standard Individual Permit, it cannot be processed as PCE. The PCE attachment for the 2-Part Wetland Finding described under the Wetlands PCE threshold Guidance (see below) must also include a statement of the expected applicable Section 404 permit, including basis. USACE confirmation of the applicable Section 404 permit type would occur through the normal coordination with the USACE in the Section 404 permitting process, the timing of which -- in relation to the NEPA document approval depends of the overall project schedule. Regardless of when the USACE coordination occurs, written documentation (e.g. pre-application meeting minutes, correspondence) of the USACE confirmation that the PCE threshold for Section 404 permit type is met needs to be attached to/filed with the PCE in the project file, so that the documentation is readily available for PCE program monitoring purposes. If the USACE coordination determines that MnDOT erred in its judgement that the PCE threshold for Section 404 permit was met, (i.e. it is determined that an LOP or Standard Individual Permit is required), it is Project Manager s responsibility to coordinate with OES to re-process as a nonprogrammatic CE (see Step 6). (At this time there is no Section 404 Nationwide Permit applicable to projects in Minnesota. The threshold reference to Nationwide is included so that, should USACE add one in the future, the PCE Agreement would not need update.) PCE GUIDANCE Draft May 9, 2017 Page 14 of 25

15 The project is anticipated to have no more than 10 acres of permanent wetland impacts. Regardless of permit type, a project anticipated to have more than 10 acres of permanent wetland impact cannot be processed as a PCE. The PCE attachment for the 2-Part Wetland Finding described under the Wetlands PCE threshold Guidance (see below) provides the documentation for this threshold. (At this time, a project with more than 10 acres of permanent wetland impacts already could not be processed as a PCE because it would require a Section 404 Individual permit. The inclusion of this threshold is included so that, should USACE change its permit limits in the future, the PCE would not need update to address FHWA s desired PCE limit for wetland impacts.) PCE GUIDANCE Draft May 9, 2017 Page 15 of 25

16 Floodplains Only projects that do not encroach into a floodplain; OR where an analysis demonstrates that the impact is not significant in accordance with EO and 23 CFR (q) may be processed as a PCE. Attachment B Environmental Threshold Guidance -OR- The project does not encroach into a floodplain. Floodplain encroachment will not have a significant impact, as defined in 23 CFR and E.O and documented by a Floodplain Assessment including Hydraulic Analysis and Risk Assessment. Refer to official floodplain map e.g. FEMA Flood Insurance Study Map, watershed district maps, flood hazard boundary maps, others to determine if any 100-year floodplains lies within the project area. Encroachment may be transverse or longitudinal. If the project involves floodplain encroachment, document by a Floodplain Assessment including Hydraulic Analysis and Risk Assessment). The HPDP Section on Floodplains provides information on preparing a floodplain assessment, including the required analysis to inform the determination as to whether the encroachment will or will not have a significant impact. Under 23 CFR (q), significant encroachment means a highway encroachment and any direct support of likely base floodplain development that would involve one or more of the following construction or flood-related impacts: A significant potential for interruption or termination of a transportation facility which is needed for emergency vehicles or provides a community s only evacuation route. A significant risk (of flooding), or A significant adverse impact on natural and beneficial floodplain values. The Floodplain Assessment must be attached to the PCE as documentation. PCE GUIDANCE Draft May 9, 2017 Page 16 of 25

17 Wetlands The project may be processed as a PCE only if it does not impact or encroach into wetlands; OR documentation demonstrates compliance with the requirements of Executive Order Attachment B Environmental Threshold Guidance -OR- The project does not impact or encroach into wetlands. Wetland encroachment(s) are all of the following: Not greater than 10 acres of permanent impacts Not significant, as documented by a 2-Part Wetland Finding, demonstrating (1) no practical avoidance and (2) all measures to minimize harm are incorporated when avoidance is not practical. The project map attached to the PCE must include construction limits and boundaries of wetlands in the project area, demonstrating no impact. Wetland impacts must be estimated prior to completion of CE document; provided in a table displaying: the nature and amount of impact, and the type/classification of the impacted wetlands; and documented on the project map which displays construction limits in relation to wetland boundaries. All projects with wetland impacts must demonstrate compliance with Executive Order (EO) 11998, specifically that: 1. There is no practical avoidance alternative to the use of wetlands. 2. The project is implementing all practicable measures to minimize harm to wetlands when it is not practical to implement the avoidance alternative. The HPDP Section on Wetlands in the HPDP includes information on how to prepare a Wetland Finding to address compliance with EO and 23 CFR 777. [THIS IS UNDERWAY AND IS YET TO BE ADDED TO THE HPDP.] As noted in the Section 404 PCE threshold guidance (see above), for projects that impact Waters of the U.S., the PCE Wetland attachment needs to also state the anticipated applicable Section 404 permit, including basis. The 2-Part Wetland Finding needs to be attached to the PCE. PCE GUIDANCE Draft May 9, 2017 Page 17 of 25

18 Coast Guard Permit Attachment B Environmental Threshold Guidance The project does not require a Coast Guard bridge permit. Consult with the Bridge engineer who can coordinate with the Coast Guard if necessary to clarify permit requirements. Sole Source Aquifer Attachment B Environmental Threshold Guidance -OR- No portion of the project is located within Crow Wing, Aitkin, Mille Lacs, or Morrison Counties Self-explanatory. Portions of the project are within Crow Wing, Aitkin, Mille Lacs, or Morrison Counties but the entire project is located outside of the Sole Source Aquifer (SSA) project review area designated by the US Environmental Protection Agency (USEPA) for any Minnesota SSA. At the time of the 2016 PCE Agreement, the only USEPA-designated sole source aquifer in Minnesota is the Mille Lacs Lake Confined Drift Aquifer (MLLCDA) SSA. The USEPA s working map of the SSA project review area is located at the USEPA website. 3 The SSA includes areas within Crow Wing, Aitkin, Mille Lacs and Morrison Counties. -OR- The project in part or in whole, is within the project review area designated by the USEPA for a Minnesota SSA but does not require a detailed groundwater impact assessment to be submitted to USEPA for review. The USEPA s working map of the SSA project review area is located at the USEPA website. 4 The SSA includes areas within Crow Wing, Aitkin, Mille Lacs and Morrison Counties. If the project in part or in whole is within this project review area, contact MnDOT OES water resource staff for assistance regarding USEPA requirements PCE GUIDANCE Draft May 9, 2017 Page 18 of 25

19 Wild and Scenic Rivers Attachment B Environmental Threshold Guidance The project does not require construction in, across, or adjacent to the boundaries a river designated as a component of, or proposed for inclusion in, the National System of Wild and Scenic Rivers. At the time of the 2016 PCE Agreement, the St. Croix River is the only river in Minnesota that meets this definition. The National Park Service website includes maps of the Riverway boundary PCE GUIDANCE Draft May 9, 2017 Page 19 of 25

20 Noise Attachment B Environmental Threshold Guidance The project is not a Type I noise project as defined by 23 CFR 772(e.g. construction of a highway on a new location which significantly changes either the horizontal or vertical alignment or changes the number of through-traffic lanes). In Minnesota, if a project is not a Type I noise project, then it is a Type III project. A Type I action is defined by 23 CFR 772 as a proposed Federal or Federal-aid highway project that meets one or more of the following conditions. (1)Construction of a highway on new location; or, (2) Physical alteration of an existing highway where there is either: (i) substantial horizontal alteration (project halves the distance between traffic noise source and closest receptor) (ii) substantial vertical alteration (project exposes line-of-sight between receptor and traffic noise source by altering vertical highway alignment or topography (not including addition or removal of vegetation) between highway traffic noise source and receptor; (3) Bridge replacement projects that satisfy item (2), above. (4) Addition of a through-traffic lane(s) (includes HOV, contraflow, toll, bus, or truck climbing lanes; (5) Addition of an auxiliary lane, except for when the auxiliary lane is a tum lane. (6) Addition or relocation of interchange lanes or ramps added to a quadrant to complete an existing partial interchange; (7) Restriping existing pavement for the purpose of adding through traffic lane or auxiliary lane; (8) Addition of a new or substantial alteration of a weigh station, rest stop, ride-share lot or toll plaza. In Minnesota, if a project is not a Type I noise project, then it is a Type III project. If there is any question about whether the project is a Type I or a Type III project, contact the MnDOT OES Noise Analysis specialist for assistance. A copy of the Noise Specialist s response must be attached to the PCE as documentation. The HPDP provides the text that should be used in the environmental document when the project is not a Type I project, and therefore is a Type III project. PCE GUIDANCE Draft May 9, 2017 Page 20 of 25

21 Air Quality Attachment B Environmental Threshold Guidance -AND- The project conforms to the state implementation plan. The project does not add significant capacity to urban highways with design year average daily traffic of 140,000 or more (i.e. does not need a quantitative mobile source air toxics [MSAT] analysis). The HPDP guidance on Air Quality provides information on conformance with the state implementation plan. Projects outside of the Twin Cities carbon monoxide maintenance area do not need a conformity determination. Projects within the Twin Cities CO maintenance that are exempt under 40 CFR also do not need a conformity determination. Of the categorical exclusions listed at 23 CFR (c) or (d), only the following project types will need to follow HPDP guidance to determine the need for a conformity determination: (c)(22); (c)(23); (c)(26); c(28); and (d)(13). Among the project types potential eligible for processing as a PCE, a project described under 23 CRF (c)(26) and including the addition of auxiliary lanes to major highway in Twin Cities metropolitan area would have the most potential to exceed this threshold. For example, large enough auxiliary lanes may still be considered to add significant capacity to a highway. PCE GUIDANCE Draft May 9, 2017 Page 21 of 25

22 Tribal Attachment B Environmental Threshold Guidance -OR- -AND- The project s anticipated construction limits will be entirely outside the federally-recognized reservation boundaries and any exterior trust lands of a Federally-recognized tribe. The project is located, in part or as a whole, within federally-recognized reservation boundaries or exterior trust lands, will not involve temporary or permanent work (including any ground disturbing activities) outside of the transportation facility s existing right-ofway or easement boundaries AND neither the tribe, MnDOT nor the project proposer has expressed a desire for a more direct sovereign-nation-to-federalgovernment relationship. Consultation with the tribe has not identified any tribal interests within the anticipated construction limits. Exterior trust land refers to property outside of reservation boundaries that has successfully gone through the Bureau of Indian Affairs fee-to-trust process. Coordination with the tribal community needs to be conducted early in the process, including communication to determine whether the tribe or the project proposer (MnDOT or the Local Public Agency) sees value in a more direct relationship for project communications and approvals between the sovereign nation (tribe) and the Federal government (FHWA or other USDOT agency). At the time of the 2017 PCE Agreement, the Mille Lacs Band of Ojibwe is the only tribe in Minnesota that has expressed this desire for the more direct sovereign-nation-to Federal government relationship at a program level. The current process with Mille Lacs Band of Ojibwe lands is that any FHWA undertaking within the federally-recognized reservation boundary or exterior trust lands will not be processed as a PCE. Tribal interests include, but are not limited to, culturally sensitive areas, rice production areas, herb gathering areas and other traditional cultural properties. International Attachment B Environmental Threshold Guidance The project is not an international project. This would be the rare project with Canada. PCE GUIDANCE Draft May 9, 2017 Page 22 of 25

23 Controversy Attachment B Environmental Threshold Guidance The project is not anticipated to be controversial. The project proposer must assess the proposed action to determine if it has the potential to be controversial and if it does, then initial coordination with potentially affected stakeholders needs to must be done, to determine the level of stakeholder interest and/or controversy. Examples of potential areas of controversy include, but are not limited to: objections to storm water pond locations for water pollution control work; objections to traffic detours; change of driveway/access configuration; median break closures/addition of raised medians; scenic overlook improvements, especially if the overlook is a historic resource; and bridge rehabilitation or replacement, especially if the bridge is a historic resource. Step 3: Can the project be processed as a PCE? If the necessary criteria/conditions for any of the environmental threshold subjects in Checklist B cannot be checked, a PCE cannot be used. The project will be processed as a non-programmatic CE. Non-programmatic CEs are reviewed and signed by MnDOT 6 and FHWA. The Long Form Cat Ex Determination document is used for non-programmatic CEs for Trunk Highway projects. SALT uses the same document format for PCEs and non-programmatic CEs. The difference is who can approve of the document. If all of the environmental threshold subjects in Checklist B can be checked, then the document can be approved by SALT staff. If a single threshold item in Checklist B is exceeded, the document must be reviewed by FHWA. If all of the necessary criteria/conditions for all of the environmental threshold subjects in Checklist B can be checked, the project can be processed as a PCE. Go to Step 4. Step 4: How is the PCE documented? The information in Step 4 and Step 5 is for MnDOT District staff preparing documents for MnDOT Trunk Highway projects. CE documentation for local projects follows State Aid for Local Transportation (SALT) procedures cited on the SALT website. The PCE can be documented with the Short Form Cat Ex Determination document. 6 OES for Trunk Highway projects and State Aid for Local Transportation (SALT) for local projects. PCE GUIDANCE Draft May 9, 2017 Page 23 of 25

24 MnDOT s responsibilities under the PCE Agreement include quality control/assurance to ensure that the PCE approvals delegated by FHWA to MnDOT are made in accordance with applicable laws and the Agreement. The PCE document should be prepared by staff experienced and trained in NEPA document preparation. It is expected that the Project Manager is responsible for quality control review of the PCE document at the district level. The PCE document must be signed by the Project Manager and the District Engineer (DE)/Assistant DE (ADE). 7 The project description in the PCE document must provide enough information to support the identified 23 CFR (c) or 23 CFR (d) citation. 8 The form identifies the supporting documentation that must be included as attachments. Any additional pertinent background information needs to be kept in the project file. Following PCE document signature, go to Step 5. Step 5: How is the approved PCE document filed and recorded? (Step 5 describes filing and recording for MnDOT Trunk Highway projects. State Aid s process is also noted below.) MnDOT s responsibilities under the current PCE Agreement include more rigorous OES monitoring and reporting regarding District-approved PCEs than was the case under the previous agreement. The Districts will take the following measures to help MnDOT efficiently carry out these responsibilities. Save the signed PCE in edocs, under the Category Environment and the Document Type Categorical Exclusion Determination. See Appendix E for instructions. Record the following project information (at a minimum) in your District s PCE tracking system and submit quarterly to OES. o o o o o o o o State Project number Trunk Highway number County Project Manager Letting Date Date PCE started (typically use the date of the Early Notification Memo [ENM]) Date PCE Approved by DE/ADE 23 CFR citation (e.g. (c)(1); (d)(10) 7 OES recommends that District staff sign their PCE documents electronically using Adobe e-signature wet look. See I-HUB for instructions. OES will require that non-programmatic CEs, EAs, and EISs be electronically signed with wet-look signature, so it is advisable to make this a consistent practice for all environmental documents, including PCEs. 8 The guidance in this document is for PCEs. However, the documentation requirements such as supporting the citation, including documentation as attachments, and keeping additional information in the project file, applies to all CE documents, including those that are non-programmatic and approved by MnDOT OES and FHWA. PCE GUIDANCE Draft May 9, 2017 Page 24 of 25

25 SALT will track this information by running a report from their Project Tracking System information. The start date will be the date that the memo is first received from the LPA. Step 6: What if the project impacts change so that the PCE thresholds/ conditions are no longer met? It is the Project Manager s responsibility to track changes in project impacts during project development to confirm that no previously-met PCE thresholds have been exceeded due to changes in project design or resource identification. If, at any time during project development, the necessary criteria/conditions for any of the environmental threshold subjects in Checklist B no longer can be checked, the project will need to be re-processed as a non-programmatic CE, i.e. reviewed and signed by MnDOT OES (for Trunk Highway projects) and FHWA. The Project Manager should coordinate with OES (and FHWA, if necessary) as soon as such changes are evident in order to minimize project delays. Note that the required OES monitoring and reporting regarding District-approved PCEs will include spotchecks of accuracy and documentation in meeting thresholds. [NOTE: APPENDICES BELOW NOT INCLUDED IN THIS DRAFT, BUT WILL BE BROUGHT TO TRAINING SESSIONS.] Appendix A Cross-walk between 1989 PCE Agreement Attachment A additional projects and the 23 CFR c- list and d-list project types. Appendix B Attachment B Checklist form Appendix C 23 CFR (c) c-list project types. Appendix D 23 CFR (d) d-list project types. Appendix E [IN DEVELOPMENT]. Use of 23 CFR (c)(22) projects within operational right of way PCE GUIDANCE Draft May 9, 2017 Page 25 of 25

26 Appendix A to PCE Decision-Making Guide Crosswalk: 1998 PCE Agreement Attachment A to 23 CFR (c) and (d) Page 1 of 4 May 8, 2017 The table below relates the 1998 PCE Agreement Attachment A list of projects to the current 23 CFR c-list and d-list options, to help those who are accustomed to citing Attachment A select the correct CE action processed under the 2017 PCE Agreement PCE Attachment A ANTICIPATED 23 CFR c-list or d-list reference 1. Pavement resurfacing, restoration, or Depending upon project details (must determine which is the best fit): rehabilitation. 23 CFR (c)(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. OR 23 CFR (d)(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints of paragraph (e) of this section. (The e-constraints are: (1) An acquisition of more than a minor amount of right-ofway or that would result in any residential or non-residential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.) Note: Projects fall under 23 CFR (d)(13) because they cross at least one of the e-constraints. These e-constraints are similar to the respective environmental thresholds listed in Attachment B to the PCE Agreement. Therefore any project falling under 23 CFR (d)(13) cannot be processed as a PCE. *2. Junkyard screening. 23 CFR (c)(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. *3. Erosion and water pollution control 23 CFR (c)(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 work. 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. 4. Acquisition and/or preservation of Orphan. 1 minor amounts of abandoned railroad right of way. 5. Architectural planning, research, and 23 CFR (c)(1) Activities which do not involve or lead directly to construction, such as planning and research activities; grants for training; engineering to define the elements of a proposed action or alternatives so that social, economic, and site investigations. environmental effects can be assessed; and Federal-aid system revisions which establish classes of highways on the Federal-aid highway system. 6. Anti-skid treatments. 23 CFR (c)(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. 7. Curb/gutter repairs or construction. 23 CFR (c)(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. 8. Repair or construction of sidewalks, 23 CFR (c)(15) Alterations to facilities or vehicles in order to make them accessible for elderly and handicapped persons. ramps, or handrails as required by the Americans with Disabilities Act. 9. Mechanical, electrical, lighting or traffic signal work. Depending upon project details (must determine which is the best fit): 23 CFR (c)(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. OR 23 CFR (c)(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. *10. Traffic detours. Orphan. Note that, just because this 1998 Attachment A project is orphaned, i.e. not specified in (c) or (d), does not mean that a project with a traffic detour cannot be a PCEs under the 2017 PCE Agreement. Under the 2017 PCE agreement, traffic detours are addressed as an environmental constraint, rather than as a project type. 1 Orphan refers to project types on the 1998 PCE Agreement Attachment A that have no corresponding project type among the actions listed in either 23 CFR (c) or 23 CFR (d).

27 Appendix A to PCE Decision-Making Guide Crosswalk: 1998 PCE Agreement Attachment A to 23 CFR (c) and (d) Page 2 of 4 May 8, PCE Attachment A ANTICIPATED 23 CFR c-list or d-list reference 11. Surfacing existing unpaved roadway or bikeways. 12. Impact attenuator and glare screen installation. 13. Retaining wall restoration, fencing, guardrail installation or replacement, intermittent resurfacing, restoration or replacement of drainage structures. 14. Shoulder resurfacing, restoration, or rehabilitation. 15. Installation of turn lanes at roadway intersections. 16. Change of driveway/access configuration. Roadway: 23 CFR (d)(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints of paragraph (e) of this section. (The e-constraints are: (1) An acquisition of more than a minor amount of right-of-way or that would result in any residential or non-residential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.) Note: Projects fall under 23 CFR (d)(13) because they cross at least one of the e-constraints. These e-constraints are similar to the respective environmental thresholds listed in Attachment B to the PCE Agreement. Therefore any project falling under 23 CFR (d)(13) cannot be processed as a PCE. Bikeway: 23 CFR (c)(3) Construction of bicycle and pedestrian lanes, paths, and facilities. Depending upon project details (must determine which is the best fit): 23 CFR (c)(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. OR Orphaned, if installation is not within the existing operational right of way. Depending upon project details (must determine which is the best fit): 23 CFR (c)(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. OR Orphaned, if not within the existing operational right of way. 23 CFR (c)(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. Depending upon project details (must determine which is the best fit): 23 CFR (c)(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. OR 23 CFR (d)(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints of paragraph (e) of this section. (The e-constraints are: (1) An acquisition of more than a minor amount of right-ofway or that would result in any residential or non-residential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.) Note: Projects fall under 23 CFR (d)(13) because they cross at least one of the e-constraints. These e-constraints are similar to the respective environmental thresholds listed in Attachment B to the PCE Agreement. Therefore any project falling under 23 CFR (d)(13) cannot be processed as a PCE. Orphan. Note: Just because this 1998 Attachment A project is orphaned, i.e. not specified in (c) or (d), does not mean a project with change of driveway/access configuration cannot be a PCEs under the2017 PCE Agreement. Under the 2017 PCE Agreement, change in access is addressed under the Right of Way environmental constraints, rather than as a project type.

28 Appendix A to PCE Decision-Making Guide Crosswalk: 1998 PCE Agreement Attachment A to 23 CFR (c) and (d) Page 3 of 4 May 8, PCE Attachment A ANTICIPATED 23 CFR c-list or d-list reference 17. Upgrading safety features. Depending upon project details (must determine which is the best fit): 23 CFR (c)(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. OR 23 CFR (c)(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. OR 23 CFR (d)(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints of paragraph (e) of this section. (The e-constraints are: (1) An acquisition of more than a minor amount of right-ofway or that would result in any residential or non-residential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.) Note: Projects fall under 23 CFR (d)(13) because they cross at least one of the e-constraints. These e-constraints are similar to the respective environmental thresholds listed in Attachment B to the PCE Agreement. Therefore any project falling under 23 CFR (d)(13) cannot be processed as a PCE. 18. Traffic demand management activities (such as ramp metering and high occupancy vehicle ramp bypasses). 19. Improvements to existing waysides and scenic overlooks. Depending upon project details (must determine which is the best fit): 23 CFR (c)(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. OR 23 CFR (d)(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints of paragraph (e) of this section. (The e-constraints are: (1) An acquisition of more than a minor amount of right-ofway or that would result in any residential or non-residential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.) Note: Projects fall under 23 CFR (d)(13) because they cross at least one of the e-constraints. These e-constraints are similar to the respective environmental thresholds listed in Attachment B to the PCE Agreement. Therefore any project falling under 23 CFR (d)(13) cannot be processed as a PCE. 23 CFR (c)(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. 20. Disposal of excess right of way. 23 CFR (d)(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 *21. Bridge rehabilitation, deck Depending upon project details (must determine which is the best fit), but in preferred order: replacement or painting. 23 CFR (c)(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 paragraph (e) of this section. OR 23 CFR (d)(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints of paragraph (e) of this section. (The e-constraints are: (1) An acquisition of more than a minor amount of right-ofway or that would result in any residential or non-residential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.) Note: Projects fall under 23 CFR (d)(13) because they cross at least one of the e-constraints. These e-constraints are similar to the respective environmental thresholds listed in Attachment B to the PCE Agreement. Therefore any project falling under 23 CFR (d)(13) cannot be processed as a PCE. OR 23 CFR (c)(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.

29 Appendix A to PCE Decision-Making Guide Crosswalk: 1998 PCE Agreement Attachment A to 23 CFR (c) and (d) Page 4 of 4 May 8, PCE Attachment A ANTICIPATED 23 CFR c-list or d-list reference *22. Bridge replacement on existing alignment with minor impacts associated with placement of fill material. *23. Railroad crossing work outside of existing right of way. *24. Reconstruction and/or widening of roadway on existing alignment with NO additional through lanes, continuous turn lanes, or auxiliary lanes. Depending upon project details (must determine which is the best fit): 23 CFR (c)(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 paragraph (e) of this section. [This citation is interpreted to encompass any of the following (subject to the e-constraints): (1) bridge rehabilitation, (2) bridge reconstruction, (3) replacement of grade separation to replace existing at-grade railroad crossings, and (4) construction of grade separation to replace existing at-grade railroad crossings.] OR 23 CFR (d)(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints of paragraph (e) of this section. (The e-constraints are: (1) An acquisition of more than a minor amount of right-ofway or that would result in any residential or non-residential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.) Note: Projects fall under 23 CFR (d)(13) because they cross at least one of the e-constraints. These e-constraints are similar to the respective environmental thresholds listed in Attachment B to the PCE Agreement. Therefore any project falling under 23 CFR (d)(13) cannot be processed as a PCE. Orphan. Depending upon project details (must determine which is the best fit): 23 CFR (c)(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. OR 23 CFR (c)(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. OR 23 CFR (d)(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints of paragraph (e) of this section. (The e-constraints are: (1) An acquisition of more than a minor amount of right-ofway or that would result in any residential or non-residential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.) Note: Projects fall under 23 CFR (d)(13) because they cross at least one of the e-constraints. These e-constraints are similar to the respective environmental thresholds listed in Attachment B to the PCE Agreement. Therefore any project falling under 23 CFR (d)(13) cannot be processed as a PCE.

30 Programmatic Categorical Exclusions: Attachment B Checklist S.P. TH. Appendix B. PCE Guidance - Draft May 9, 2017 Project Name: To qualify as a Programmatic Categorical Exclusion, at least one of the statements provided for each topic below must be true. If for any topic, no provided statement can be checked off, the project may exceed that threshold in Attachment B of the Programmatic Categorical Exclusion Agreement between FHWA and MnDOT. The project does not use Section 4(f) lands or properties. Section 4(f) or The project is an independent bikeway/walkway covered by the FHWA Section 4(f) Statement and Determination for Independent Bikeways or Walkways (Negative Declaration statement) dated May 23, and The project meets temporary occupancy conditions that do not constitute a Section 4(f) use per 23 CFR (d). / or The project requires no acquisition of real property interest subject to Section 6(f) or encumbered by similar public-use funding that restricts conversion to other uses. Section 6(f) The provisions of the National Historic Preservation Act have been satisfied by a Section 106 finding of no properties. Historic/ Archeological For NRHP-listed or eligible properties other than historic bridges, the provisions of the National Historic Preservation Act have been satisfied by a Section 106 finding of no effect or no adverse effect per the current Programmatic Agreement (PA) among FHWA, the or Minnesota Historic Preservation Office (MnHPO), the Advisory Council on Historic Preservation (ACHP), the United States Army Corps of Engineers (USACE) and MnDOT. and For NRHP-listed or eligible historic bridges, the provisions of the National Historic Preservation Act have been satisfied by a Section 106 finding of no effect per the current PA among FHWA, SHPO, ACHP, USACE and MnDOT. and No Section 106 Agreement (i.e. Memorandum of Agreement or Programmatic Agreement) or known post-nepa plan review by CRU and the MnHPO or a Tribal Historic Preservation Office (THPO) is deemed appropriate by MnDOT and FHWA. The provisions of the Endangered Species Act (ESA) have been satisfied by a Section 7 determination of no effect to threatened or endangered species or critical habitat. Threatened and Endangered Species - Federal The provisions of the ESA have been satisfied by a Section 7 determination, per written correspondence with the USFWS, of may affect, or not likely to adversely affect threatened or endangered species or critical habitat, or may affect but will not cause prohibited take of the Northern Long-eared Bat (NLEB). or The provisions of the ESA have been satisfied by a Section 7 determination of no jeopardy for any species proposed for listing under the ESA. The project does not require any new right of way, permanent easement, or temporary easement. or The project requires only minor amounts of new right of way, permanent easement or temporary easement, defined as -Up to 5 acres per linear mile (absolute, not average), but total permanent not more than 25 acres plus total temporary not more than 40 acres. Right of Way -Up to 10 acres (permanent plus temporary) for spot improvements (such as bridge replacement). and The project requires no relocations of residences or businesses. and Change in direct access to property is minor. and Property acquisition or change in access to property required for the project will not affect the use of the property. Highway Access Change Pedestrian/ Bicycle Access Change The project does not add or remove a ramp on an existing expressway or freeway interchange. and The project does not add an interchange to an expressway or freeway. The project does not permanently remove existing pedestrian, bicycle, or transit facilities. and The project does not permanently impede safe and reasonable access to existing pedestrian, bicycle or transit facilities. The project does not involve construction of temporary access or closure of an existing road, bridge or ramp. or Traffic Disruption The project does involve construction of temporary access or closure of an existing road, bridge or ramp, but the following conditions are met: For projects outside of the boundaries of a metropolitan planning organization (MPO), temporary access would not last for more than one construction season and road, bridge or ramp closure would not result in a detour that would last for more than one construction season or increase (one-way, out-of-direction) travel distance greater than 5 miles in an urban area or 25 miles in a rural area. For projects within the boundaries of an MPO, the project either would not require a full traffic management plan (TMP) per the Minnesota Work Zone Safety and Mobility Policy (or subsequent replacement policy) or the required full TMP will maintain the number of pre-project through lanes during a.m. and p.m. weekday peak periods for the duration of the project. Contamination Hazards PCE Agreement: Attachment B Checklist The project does not have a high risk of causing direct or indirect impacts to human health or sensitive environmental resources due to encountering contamination or hazardous materials. 1

31 Farmland Section 404 Floodplains Wetlands Coast Guard Permit Sole Source Aquifer Wild and Scenic Rivers Noise Air Tribal International Controversy or or or and or or or or and or and The Farmland Protection Policy Act (FPPA) does not apply. The project will not involve acquisition of farmland. Form AD-1006 or Form NRCS-CPA-106 has been completed and provided to NRCS. The project does not involve placement of fill into Waters of the U.S. The project is anticipated to be covered by a USACE Section 404 Nationwide or Regional General Permit. The project is anticipated to have no more than 10 acres of permanent wetland impacts. The project does not encroach into a floodplain. Floodplain encroachment will not have a significant impact, as defined in 23 CFR and E.O and documented by a Floodplain Assessment including Hydraulic Analysis and Risk Assessment. The project does not impact or encroach into wetlands. Wetland encroachment(s) are all of the following: Not greater than 10 acres of permanent impacts and Not significant, as documented by a 2-Part Wetland Finding, demonstrating (1) no practical avoidance and (2) all measures to minimize harm are incorporated when avoidance is not practical. The project does not require a Coast Guard bridge permit. No portion of the project is located within Crow Wing, Aitkin, Mille Lacs, or Morrison Counties. Portions of the project are within Crow Wing, Aitkin, Mille Lacs, or Morrison Counties but the entire project is located outside of the Sole Source Aquifer (SSA) project review area designated by the US Environmental Protection Agency (USEPA) for any Minnesota SSA. The project in part or in whole, is within the project review area designated by the USEPA for a Minnesota SSA but does not require a detailed groundwater impact assessment to be submitted to USEPA for review. The project does not require construction in, across, or adjacent to the boundaries a river designated as a component of, or proposed for inclusion in, the National System of Wild and Scenic Rivers. The project is not a Type I noise project as defined by 23 CFR 772(e.g. construction of a highway on a new location which significantly changes either the horizontal or vertical alignment or changes the number of through-traffic lanes). In Minnesota, if a project is not a Type I noise project, then it is a Type III project. The project conforms to the state implementation plan. The project does not add significant capacity to urban highways with design year average daily traffic of 140,000 or more (i.e. does not need a quantitative mobile source air toxics [MSAT] analysis). The project s anticipated construction limits will be entirely outside the federally-recognized reservation boundaries and any exterior trust lands of a Federally-recognized tribe The project is located, in part or as a whole, within federally-recognized reservation boundaries or exterior trust lands, will not involve temporary or permanent work (including any ground disturbing activities) outside of the transportation facility s existing right-of-way or easement boundaries AND neither the tribe, MnDOT nor the project proposer has expressed a desire for a more direct sovereign-nationto-federal-government relationship. Consultation with the tribe has not identified any tribal interests within the anticipated construction limits. The project is not an international project. The project is not anticipated to be controversial. Based upon the above, it is determined that the project does not exceed the thresholds in Attachment B of the Programmatic Categorical Exclusion Agreement between FHWA and MnDOT, dated April 13, Name: Signator s Title Date PCE Agreement: Attachment B Checklist 2

32 Appendix C. Project types listed in 23 CFR (c) and constraints listed in 23 CFR (e) 23 CFR (c): The following actions meet the criteria for CEs in the CEQ regulations (40 CFR ) and (a) and normally do not require any further NEPA approvals by the FHWA: (1) Activities which do not involve or lead directly to construction, such as planning and research activities; 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. (2) Approval of utility installations along or across a transportation facility. (3) Construction of bicycle and pedestrian lanes, paths, and facilities. (4) Activities included in the State's highway safety plan under 23 U.S.C (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. (7) Landscaping. (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. (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. PCE GUIDANCE Draft May 9, 2017 Page C-1 of C-6 Appendix C 23 CFR (c)&(e)

33 (10) Acquisition of scenic easements. (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. (13) 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. (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. (18) Track and railbed maintenance and improvements when carried out within the existing right-of-way. (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) Promulgation of rules, regulations, and directives. (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. (22) Projects, as defined in 23 U.S.C. 101, that would take place entirely within the existing operational rightof-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-ofway. PCE GUIDANCE Draft May 9, 2017 Page C-2 of C-6 Appendix C 23 CFR (c)&(e)

34 (23) Federally-funded projects: 1 (i) That receive less than $5,000,000 (as adjusted annually by the Secretary to reflect any increases in the Consumer Price Index prepared by the Department of Labor) of Federal funds; or (ii) With a total estimated cost of not more than $30,000,000 (as adjusted annually by the Secretary to reflect any increases in the Consumer Price Index prepared by the Department of Labor) and Federal funds comprising less than 15 percent of the total estimated project cost. (24) Localized geotechnical and other investigation 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. (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. (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. (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. (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 paragraph (e) of this section. (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. 23 CFR (e) Actions described in (c)(26), (c)(27), and (c)(28) of this section may not be processed as CEs under paragraph (c) if they involve: 1 FHWA Minnesota Division advises that MnDOT would need to collaboratively establish a cost tracking documentation meeting the Title 23 [79 FR 60102] and auditing requirements. This tracking system must be consistently implemented statewide before FHWA would accept use of 23 CFR (c) (23) as a citation for any potential CE project. PCE GUIDANCE Draft May 9, 2017 Page C-3 of C-6 Appendix C 23 CFR (c)&(e)

35 (1) An acquisition of more than a minor amount of right-of-way or that would result in any residential or nonresidential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers. PCE GUIDANCE Draft May 9, 2017 Page C-4 of C-6 Appendix C 23 CFR (c)&(e)

36 Appendix D. Project types listed in 23 CFR (d) and constraints listed in 23 CFR (e) 23 CFR (d): Additional actions which meet the criteria for a CE in the CEQ regulations (40 CFR ) and paragraph (a) of this section may be designated as CEs only after Administration approval unless otherwise authorized under an executed agreement pursuant to paragraph (g) of this section. The applicant shall submit documentation which demonstrates that the specific conditions or criteria for these CEs are satisfied and that significant environmental effects will not result. Examples of such actions include but are not limited to: (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. PCE GUIDANCE Draft May 9, 2017 Page C-5 of C-6 Appendix C 23 CFR (c)&(e)

37 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. (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. (13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints in paragraph (e) of this section. 23 CFR (e) Actions described in (c)(26), (c)(27), and (c)(28) of this section may not be processed as CEs under paragraph (c) if they involve: (1) An acquisition of more than a minor amount of right-of-way or that would result in any residential or nonresidential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers. PCE GUIDANCE Draft May 9, 2017 Page C-6 of C-6 Appendix C 23 CFR (c)&(e)

38 Appendix D. Project types listed in 23 CFR (d) and constraints listed in 23 CFR (e) 23 CFR (d): Additional actions which meet the criteria for a CE in the CEQ regulations (40 CFR ) and paragraph (a) of this section may be designated as CEs only after Administration approval unless otherwise authorized under an executed agreement pursuant to paragraph (g) of this section. The applicant shall submit documentation which demonstrates that the specific conditions or criteria for these CEs are satisfied and that significant environmental effects will not result. Examples of such actions include but are not limited to: (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. PCE GUIDANCE Draft May 9, 2017 Page D-1 of D-2 Appendix D 23 CFR (d)&(e)

39 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. (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. (13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints in paragraph (e) of this section. 23 CFR (e) Actions described in (c)(26), (c)(27), and (c)(28) of this section may not be processed as CEs under paragraph (c) if they involve: (1) An acquisition of more than a minor amount of right-of-way or that would result in any residential or nonresidential displacements; (2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; (3) A finding of adverse effect to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in de minimis impacts, or a finding of may affect, likely to adversely affect threatened or endangered species or critical habitat under the Endangered Species Act; (4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions; (5) Changes in access control; (6) A 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); or construction activities in, across or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers. PCE GUIDANCE Draft May 9, 2017 Page D-2 of D-2 Appendix D 23 CFR (d)&(e)

40 Appendix E. Existing Operational Right of Way Examples Step 1 in determining whether or not a project can potentially be processed under the Programmatic Categorical Exclusion (PCE) Agreement is determining whether the project type is specified in either 23 CFR (c) or 23 CFR (d). 23 CFR (c)(22) is the citation for projects take place entirely within the existing operational right of way (OROW). Operational right of way is not the same thing as the existing right of way. Read 23 CFR (c)(22) carefully to be sure the definition of operational right of way applies: 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. The following pages include examples in various contexts. Following the examples are a lists of FAQs prepared by the FHWA Minnesota Division regarding the Final Rule for Projects of Limited Federal Assistance and Existing Operational Right-of-Way. If the definition of being within the existing OROW does apply, include information, including figures, in the CE document project description that shows how the project fits into the existing OROW. Accurate right of way requirements and construction limits (worst-case) are critical when using this CE, because if new right of way is later required, then the CE citation will no longer apply. If this is a concern, consider selecting a different applicable c-list or d-list citation. PCE GUIDANCE Draft May 9, 2017 Page E-1 of E-13 Appendix E Existing OROW

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