An Overview and Comparison of the Tennessee Department of Transportation s Environmental Evaluation Process

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1 Introduction This document provides a brief overview of the policy and procedures that govern the environmental evaluation process that the Tennessee Department of Transportation (TDOT) must follow for all transportation projects. The basis for the environmental evaluation of transportation projects that involve federal funding and/or require a major federal action (i.e. U.S. Army Corps of Engineers permit) is the National Environmental Policy (NEPA). The basis for the environmental evaluation of transportation projects that involve state funding and do not constitute a major federal action is the Tennessee Environmental Evaluation Report (TEER). The TEER process was developed by TDOT to ensure a rigorous environmental evaluation of state-funded transportation projects. The NEPA and TEER processes involve a similar approach to project development that provides for early and ongoing consideration of environmental effects. National Environmental Policy The United States Congress enacted the National Environmental Policy of 1969 (NEPA) to establish a national policy to protect the environment. The act is codified in Title 42 of the United States Code, Sections 4321 through 4347 (abbreviated as 42 USC ).1 On January 1, 1970, NEPA was signed into law by President Richard Nixon. NEPA requires federal agencies to consider environmental issues prior to making any major decisions on projects that have federal involvement (e.g., funding or permitting) To determine a project s potential benefit or harm to the environment, NEPA requires an assessment of environmental impacts and an evaluation of alternatives to avoid or mitigate any identified adverse impacts to the environment. Section of 23 CFR defined the three classes of actions that determine how compliance with NEPA is carried out and documented for transportation projects: Class I - Environmental Impact Statement (EIS) is prepared for projects that will cause a significant adverse effect on the environment. Class II - Categorical Exclusion (CE) is prepared for projects that cause minimal social, economic or environmental impact; Class III - Environmental Assessment (EA) is prepared for larger scale projects that do not meet the requirements for a CE or those for which the significance of the environmental impact is not clearly established. Should environmental analysis and interagency review during the EA process find a project to have no significant impacts on the quality of the environment, a Finding of No Significant Impact (FONSI) is issued. If it is found that the project will have significant impacts, an EIS must be prepared. While the basic tenant of NEPA has remained unchanged since it was signed in January 1970, numerous environmental laws, Executive Orders, and agency policies and guidelines have been put into place to aid in interpreting the mandates of NEPA. As recently as August 2005, the federal transportation act, the Safe, Accountable, Flexible, Efficient Transportation Equity Legacy for Users (SAFETEA-LU), included several provisions intended to enhance the consideration of environmental issues and impacts within the transportation planning process, and it established a new environmental review process for highways, transit and multi-modal projects. As previously discussed, projects that are funded in whole or in part with federal funds or have major federal actions must follow the requirements of NEPA, as well as related federal and state environmental regulations. Certain state-funded transportation projects undertaken by the Tennessee Tennessee Department of Transportation 1 5/22/2008

2 Department of Transportation (TDOT) or by local governments for TDOT are subject to a state-level environmental evaluation, the Tennessee Environmental Evaluation Report (TEER). Tennessee Environmental Evaluation Report TDOT is committed to an approach to project development that provides for early and ongoing consideration of the environmental effects of state-funded projects for which NEPA does not apply. State-funded transportation projects that require the acquisition of right-of-way and/or the construction of new roadways and other transportation facilities are subjected to a rigorous environmental review that is documented in a Tennessee Environmental Evaluation Report (TEER) that is made available for public review. The TDOT approach to evaluating state-funded projects includes early identification and evaluation of potential environmental consequences, consultation with affected agencies and the public, and the development of measures to avoid, minimize and/or mitigate the adverse effects of state-funded projects on the natural and human environments of Tennessee. Approval of the environmental evaluation rests with the Commissioner of Transportation. A TEER is prepared for a state-funded transportation project that meets both of the following criteria: Is a transportation route (including a bridge project); and Requires acquisition or disturbance of at least one acre of new or additional right-of-way, unless there are special circumstances that would necessitate the preparation of a TEER for a project with less than one acre of property acquisition. Special circumstances that would result in the need to prepare a TEER under the second criterion listed above include, but are not limited to, the following: 1. Displacement of any commercial or residential occupants; 2. The use of land from a property or district that is listed on or eligible for listing on the National Register of Historic Places or a National Historic Landmark, which would cause an adverse effect to that resource; 3. The use of land from a public park or recreation area, designated forest, or wildlife management area; 4. Work that requires a US Coast Guard construction permit, or an individual US Army Corps of Engineers Section 404 Permit; 5. Construction in, across, or adjacent to a river designated as a component of the National System of Wild and Scenic Rivers or high quality streams, including streams designated as Outstanding National Resource Waters (ONRW), as designated by Tennessee s water quality standard; 6. Work encroaching on a regulatory floodway or work affecting the base floodplain (100-year flood) elevation of a water course or lake; 7. Work in wetlands; 8. Change in access control; 9. A known hazardous materials site within the proposed right-of-way; Tennessee Department of Transportation 2 5/22/2008

3 10. An adverse effect to federal or state designated threatened or endangered species or their critical habitat; or 11. A formal request for the preparation of a TEER is received from a local citizen, group or organization, and the request is based on identified environmental concerns. Once it is determined that a TEER is necessary, there are a series of steps that are required to conduct the evaluation. The length of time and the number of steps required to conduct the environmental review process are dictated by the size or complexity of the project, the level of controversy and the amount of coordination necessary. Early coordination with other federal, state and local agencies and with the public is an essential ingredient in the project development process for transportation projects, whether they are federally or state-funded. Early coordination is helpful in developing the project s purpose and need, determining alternatives, and identifying issues of concern, the scope of the environmental resources that would be affected by the project, permit requirements, possible mitigation measures, and opportunities for environmental enhancements. For major TEER projects, TDOT incorporates the process outlined in the Tennessee Environmental Streamlining Agreement (TESA). This includes the development and implementation of a Project Coordination Plan which outlines lead agency responsibilities and the process for providing the public and other agencies opportunities for input. A major TEER project conducted following the TESA process also includes agency concurrence points as discussed in the Tennessee Environmental Streamlining Agreement. To conduct a TEER for a state-funded project, the Environmental Division staff collects data, reviews existing records, and conducts technical studies and impact analyses. Much of the information that needs to be gathered and analyzed for a state-funded transportation project and to complete the TEER documentation is similar to the information needed to complete a NEPA document. The table on the following page outlines the laws and regulations that apply to federally-funded transportation projects (NEPA) and state-funded projects (TEER). The TDOT Environmental Manual (adopted April 16, 2007) which outlines the NEPA and TEER process is available for viewing and/or download on the TDOT website at: Tennessee Department of Transportation 3 5/22/2008

4 Section Technnical Study NEPA TEER Cultural Resources Section 106 of the Historic Preservation Section 4(f) of the Department of Transportation Natural Resources Clean Water Tennessee Water Quality Control Endangered Species Fish and Wildlife Coordination Executive Order 11988, Floodplain Management Executive Order 11990, Protection of Wetlands Tennessee Non-game and Endangered or Threatened Wildlife Species Conservation Tennessee Rare Plant Protection and Conservation TCA , Historical Review of State Projects (Public Law 699) Clean Water Tennessee Water Quality Control Although the Endangered Species is not required, TDOT coordinates with US Fish and Wildlife Tennessee Non-game and Endangered or Threatened Wildlife Species Conservation Tennessee Rare Plant Protection and Conservation Noise TDOT Noise Policy TDOT Noise Policy Air Quality Clean Air EPA Final Conformity Rule Mobile Source Air Toxics PM2.5 Hot Spot Determination Process and Hazardous Materials Comprehensive Environmental Response and Compensation and Liability Resource Conservation and Recovery Displacement and Relocation Uniform Relocation Assistance and Real Property Acquisition Policies Clean Air PM2.5 Hot Spot Determination Process and Comprehensive Environmental Response and Compensation and Liability Resource Conservation and Recovery Uniform Relocation Assistance and Real Property Acquisition Policies Soils and Geology Geotechnical Study Geotechnical Study Tennessee Department of Transportation 4 5/22/2008

5 Section Technical Study NEPA TEER Recreational Resources Section 4(f) of the Department of Transportation Other Impact Analyses Social and Community Environmental Justice and Non-Discrimination Section 6(f) of the Land and Water Conservation Fund Intermodal Surface Transportation Efficiency Title VI of the Civil Rights 23 USC 109(h), Standards 23 CFR 771, Environmental Impact and Related Executive Order on Environmental Justice Title VI of the Civil Rights Executive Order on Environmental Justice Although not obligated to conduct a Section 4(f) evaluation, TDOT is committed to investigating ways to avoid, minimize and/or mitigate impacts endeavors to follow these s and Executive Orders endeavors to follow the intent of Title VI and Executive Order Economic and Business Same Studies Land Use Planning and Same Studies Land Use Farmland Farmland Protection Policy may pursue coordination with the Natural Resource Conservation Service Visual Quality Traffic and Accident (if applicable) Construction Wild and Scenic Rivers Floodplain Pedestrian and Bicycle Considerations (if applicable) Wild and Scenic Rivers Tennessee Scenic Rivers 23 CFT 650A Executive Order 11988, Floodplain Management USDOT Order 550.2, Floodplain Management and Protection Tennessee Scenic Rivers endeavors to follow these s and Executive Orders 23 USC 109(n) endeavors to follow these s Energy Indirect and Cumulative Tennessee Department of Transportation 5 5/22/2008