Statement of Scope
Department of
Transportation
Relating to
:
|
Wisconsin Environmental Policy Act
|
Rule Type
:
|
Permanent Rule
|
1. Finding/nature of emergency (Emergency Rule only):
N/A
2
.
Detailed description of the objective of the
proposed
rule
:
Background and Regulatory Framework
The purpose of Wisconsin Administrative Code Chapter
Trans 400
is to implement the Wisconsin Environmental Policy Act
(W
EPA
)
, s.1.11, Stats., by establishing the policy by which the department will consider environmental effects of it major actions on the quality of the human environment, by identifying actions under the jurisdiction of the department that have the potential to affect the quality of the human environment, by determining the appropriate environmental analysis and documentation necessary for each action, by ensuring an opportunity for public participation in the process, and by establishing procedures by which the department will consider the effects of its actions on the quality of the human environment.
WEPA has a broad mandate to consider certain environmental impacts of major state agency actions, but does not prescribe many specific procedures for doing so.
Wisconsin Administrative Code Chapter
Trans 400
establishes WEPA
procedures for
the
State of Wisconsin Department of Transportation (Department)
, as well as for
local units of government
when
seek
ing state
reimbursement through the l
ocal roads improvement program,
s.
86.31
, Stats.
D
epartment actions
or local units of government
must also follow the National Environmental Policy Act (NEPA) and federal implementing regulations
when federal funds or a federal permit are involved
. Like WEPA, NEPA imposes a broad mandate to consider environmental impacts of major actions, but does not prescribe many procedural specifics. As such,
various federal agencies have promulgated rules and guidance that establish federal NEPA procedural requirements.
Most relevant for the department, t
hese agencies include
the
F
ederal
H
ighway
A
dministration (FHWA),
F
ederal
Tr
ansit
A
dministration (FTA), the
F
ederal
A
viation
A
dministration (FAA), and the
F
ederal
R
ailroad
A
dministration (FRA).
T
he
C
ouncil on
E
nvironmental
Q
uality (CEQ)
also
promulga
tes general
NEPA regulations
,
found at 40 CFR
pts. 1500 to 1508
that apply to all federal agency actions
,
such as funding state-administered projects.
The
regulations that
primarily
impact department
project development
are the regulations found at
23 CFR 771.101
to
771.139
(FHWA’s NEPA regulations). Although promulgated under the FHWA heading, these regulations apply to all U.S. DOT highway and public transportation projects. FHWA’s NEPA regulations
are
also intended to incorporate
the general CEQ regulations
.
Wisconsin Administrative Code Chapter
Trans 400
was written to closely parallel FHWA’s NEPA regulations to ensure department actions meet both state and federal requirements, thereby avoiding any need to create two environmental documents.
Congress approved significant changes to U.S. DOT’s environmental review process as part of the federal surface transportation funding bill, the Moving Ahead for Progress in the 21
st
Century Act (MAP 21), P.L.
112-141
,
126
Stat. 405-986 (2012).
The changes, codified by federal transportation agencies through their rule-making processes, resulted in:
•
Streamlining
of the
federal
environmental review process for certain federally-funded transportation projects by reducing the level of required environmental documentation
•
Accelerating
project delivery
•
Encouraging
innovative project development approaches
These changes to t
he NEPA regulations greatly benefit many projects using federal funds, but are not reflected in Wisconsin’s Trans 400 WEPA regulations. This inconsistency between federal and State regulations results in additional cost and time for many State projects being evaluated under WEPA.
The d
epartment proposes to amend
Wisconsin Administrative Code Chapter
Trans 400
to re-establish Trans 400’s consistency with federal NEPA regulations. The department will also update obsolete references and correct minor, no
n-substantive clerical errors.
Without these changes to
Wisconsin Administrative Code Chapter
Trans 400
, environmental documentation
for some common project types
though State WEPA regulations will
remain
more restrictive than through
federal
NEPA
regulations.
Issues and Objectives for this Rulemaking
The current version of
Wisconsin Administrative Code Chapter
Trans 400
does not contain the
new
streamlining and process reduction opportunities
made available through MAP-21
,
revisions to FHWA’s NEPA regulations and guidance
. The result is that, for some project types,
Wisconsin Administrative Code Chapter
Trans 400
is more restrictive
, costly and time-consuming
because it
requires higher levels of documentation
and review
than
applicable federal NEPA regulations
.
Additionally, the
current Trans 400 contains out
dated references and may contain minor, non-substantive
clerical
errors
.
The objective of updating
Wisconsin Administrative Code Chapter
Trans 400
is to re-establish Trans 400’s consistency
with
FHWA and other federal agency NEPA regulations
.
The
department will also update out
dated references and will evaluate the rule and correct minor, non-substantive clerical errors.
3
.
Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives
:
Alternatives Analysis
This rulemaking proposes updating
Wisconsin Administrative Code Chapter
Trans 400
to re-establish consistency with FHWA and other federal NEPA regulations. Generally speaking, alternatives to adopting requirements consistent with NEPA included: do nothing, adopt more restrictive procedures than NEPA requirements, or adopt less restrictive procedures than NEPA requires.
The department rejected these alternatives.
Wisconsin Administrative Code Chapter
Trans 400
currently has more restrictive procedural requirements than MAP-21 and NEPA regulations. As such, the “do nothing” and “adopt more restrictive requirements” alternatives have a similar negative aspect:
the department and local units of government would not be able to take advantage of MAP-21 streamlining provisions.
Alternatively, the department could adopt
less restrictive requirements
. However
,
the department would still have to follow NEPA regulations to secure federal funding. Less restrictive
requirements may also cause confusion over which regulation applies, and might even have the effect of weakening the department’s implementation of WEPA.
Existing Policies and
Policy Proposals
The following is a summary of the proposed changes to the existing rule:
•
Environmental
Impact Statements: Revise language describing categories of actions normally requiring an environmental impact statement (EIS) to align with language in federal transportation agency rules.
•
Categorization
of Department Actions: Remove specific descriptions of highway, transit and airport action types that require preparation of an environmental assessment (EA), environmental report (ER) or categorical exclusion (CE). Replace these descriptions with references to federal transportation agency rules that identify the environmental document type required for the proposed action.
•
WEPA
Process Streamlining: Require a combined final environmental impact statement (FEIS) and record of decision (ROD) to the maximum extent practicable to be consistent with MAP-21. There is currently no provision for a combined EIS/ROD in Trans 400.
•
Update
federal transportation agency rule references which have been updated or moved since the last
Wisconsin Administrative Code Chapter
Trans 400
update.
•
Add
, delete and revise definitions to align with federal transportation agency definitions.
•
Include
language requiring public availability of and a public hearing on an ER when determined appropriate by the department.
4
.
Detailed explanation of statutory authority for the rule
(including
the
statutory citation and language):
5
.
Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule
:
The estimated time for
all
state employees’ involvement is
approximately
5
00
hours. Other resources, such as consultants, are not anticipated unless state employees cannot allocate the necessary time.
6
.
List with description of all entities that
may
be affected by the proposed rule
:
•
Wisconsin
Department of Transportation – when
considering the environmental effects of its major actions
.
•
Local
units of government such as
c
ounties,
c
ities,
villages and
t
owns – when preparing
environmental
documents for
department-funded or reimbursed
projects.
•
Project
stakeholders, such as the general public or environmental groups, who regularly engage with the department during the environmental review process are not anticipated to be significantly impacted. Some public review periods will be shorter or discretionary; for instance, review periods are shortened by combining the FIES and ROD. However, there will still be ample opportunity for public input and
the proposed rulemaking will allow
discretion to extend timeframes whe
n
appropriate.
7
.
Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule
:
The proposed
rulemaking
will
incorporate
into
Wisconsin Administrative Code Chapter
Trans 400
the streamlining provisions of MAP-21 and
FHWA’s NEPA
regulations
,
23 CFR pt. 771
, a
nd guidance
.
The proposed changes are intended to be consistent with federal rules regulati
ng the same types of activities, see policy proposals above.
8
. Anticipated economic impact of i
mplementing the rule
(note if the rule is likely to have a significant economic impact on small businesses)
:
The proposed rule changes
are not anticipated to
have a significant econom
ic impact to small businesses.
The proposed changes have the potential to reduce time and cost on
most department
and local government
unit transportation improvement
projects.
Contact Person:
Daniel Scudder
State of Wisconsin Department of Transportation
Environmental Process and Documentation Section
4802 Sheboygan Avenue, Room 451
Madison, WI 53707
Phone: 608-267-3615
