STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED ORDER
AMENDING PERMANENT RULE
The State of Wisconsin Department of Transportation Proposes an Order to Amend Permanent Rule
ch.
Trans 400
Relating to Wisconsin Environmental Policy Act.
The Statement of Scope for this Permanent Rule
, SS
060-16
, was approved by the Governor on
July 11, 2016
, published in
Register No.
727A3
on
July 18, 2016
, and approved by Secretary of the State of Wisconsin Department of Transportation (“Department”) Mark Gottlieb, P.E., as required by s.
227.135(2)
, Stats, on
August 1
, 2016
. The analysis below was prepared by the Department.
ANALYSIS
Statutes Interpreted:
Section
1.11
, Stats.
Explanation of Agency Authority:
Sec
tion
1.11
,
Stats.,
directs the D
epartment to prepare a detailed statement to be included in every recommendation or report on proposals for major
D
epartment actions that significantly affect the quality of the human environment. Section
85.16 (1)
authorizes the secretary to “make reasonable and uniform orders and rules deemed necessary to the discharge of the powers, duties and functions vested in the department.”
Similarly,
and subject to certain conditions and limitations,
s.
227.1
1
(2)
,
Stats.,
authorizes agencies to promulgate rules to interpret the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute
.
Related Statute or Rule:
No additional statutes or rules than those identified
.
Plain Language Analysis:
Chapter
Trans 400
implements the Wisconsin Environmental Policy Act (WEPA), s.
1.11
,
Stats.,
by establishing the policy and procedures by which the
D
epartment will evaluate and consider the environmental effects of its major actions. Local units of government must also follow
ch.
Trans 400
when undertaking local projects with state or federal funding under s.
86.31
, Stats.
To maximize availability of federal
funds,
ch.
Trans 400
was w
ritten to parallel the National
Environmental Policy Act (NEPA) regulations promulgated by various federal agencies. Recent updates to federal law, rules and guidance, including updates to the federal transportation funding bill MAP-21 and the Federal Highway
Administration’s and Federal Transit Administration’s NEPA regulations and guidance, have incorporated provisions that are intended to streamline and allow innovation in the environmental review process. As a result,
ch.
Trans 400
potentially imposes more restrictive procedural requireme
nts on the D
epartment than state statute or federal laws. The proposed updates would incorporate recent federal streamlining provisions to re-establish consistency between federal and state rules for environmental docum
ents related to transportation.
The proposed updates also consolidate references to federal rules and policies to improve readability and reduce future rulemaking efforts to keep specific citations current.
In addition, this rulemaking addresses non-substantive errors and provisions that may be perceived as internally inconsistent in the current rule.
S
ummary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
WEPA, as implemented through
ch.
T
rans 400
, applies to all major D
epartment actions.
In
order to ensure the
availability of federal funds
and other federal approvals
, D
epartment actions must also follow the National Environmental Policy Act (NEPA). 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, these agencies include the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), the Federal Aviation Administration (FAA), and the Federal Railroad Administration (FRA). The
President’s
Council on Environmental Quality (CEQ) also promulgates general NEPA regulations, fou
nd at 40 CFR pts. 1500 to 1508. The CEQ’s regulations
apply
to all federal agency actions,
such as
approving the use of federal
fund
s on
state-a
dministered transportation projects
.
The most substantive regulations that impact
D
epartment
highway
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.
Chapter
Trans 400
was written to closely parallel FHWA’s NEPA regulations to ensure department actions meet both state and federal requirements. Over the years, both FHWA’s NEPA regulations and
ch.
Trans 400
have been updated to incorporate new policies or new directives from Congress. Recently, Congress approved significant changes to U.S. DOT’s environmental review process as part of the most recent federal surface transportation funding bill, the Moving Ahead for Progress in the 21st Cent
ury Act (MAP-21), P.L.
112-141
,
126
Stat. 405-986 (2012). These changes are intended to streamline the environmental review process for transportation projects by reducing required processes, accelerating project delivery and encouraging innovative project development approaches.
These changes to the NEPA regulations greatly benefit many projects using federal funds
or otherwise requiring federal approval
, 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.
C
omparison with Rules in Adjacent States:
Neighboring states either follow federal NEPA regulations when seeking federal approval and/or funding, or have adopted potentially more restrictive environmental regulations as a matter of that state’s preferred policy.
Illinois, Iowa, and Michigan do not have state-level envir
onmental policy acts like WEPA.
Minnesota does have a state-level environmental policy act like WEPA, found at Minn. Stat.
ss.
116D.01 to 116D.06. Unlike Wisconsin’s
ch.
Trans 400
, Minnesota’s implementing rules apply generally to all state agencies. Minnesota’s rules are found at Minn. Admin. R.
ch.
4410.
The Michigan DOT’s EIS guidance is available here (accessed Sep. 15, 2016):
The President’s Council on Environmental Quality (CEQ) has compiled a list of other states with NEPA-like state environmental policy acts, available at:
Summary of the Factual Data and Analytical Methodologies:
B
y better aligning Trans 400 with newly enacted federal laws,
the
D
epartment and local transportation authorities will be able to capture the
streamlining
and efficiencies
intended
with those
federal law changes
. T
he D
epartment expects reduced review time and process,
with
benefits
that
will vary by each agency action, depending on the circumstances of that action and the extent to which new streamlined procedures apply.
Analysis Regarding Rule’s Effect on Small Businesses:
Because this rule does not add any regulatory requirements for small businesses, the proposed rule updates will not have an economic impact on small
businesses under s.
227.24(3m)
,
Stats.
Effect on small business:
The Department anticipates no effect on small businesses as a result of this rule
.
The agency contact person listed below is also the small business regulatory coordinator for this proposed rule.
This proposed rule, fiscal estimate, and other related documents may be viewed at
https://docs.legis.wisconsin.gov/code
.
Agency Contact Person:
Daniel Scudder
State of Wisconsin Department of Transportation
Division of
Transportation Systems Development
4802 Sheboygan Avenue Room
451
Madison, Wisconsin 53707
Phone Number
: 608-267-3615
Place Where Comments Should Be Submitted and Deadline:
Comments may be submitted to the agency contact person listed above
or through the Legislature’s Administrative Rules website
http://docs.legis.wisconsin.gov/code
until the deadline given in the forthco
ming notice of public hearing.
TEXT OF
PERMANENT
RULE
SECTION 1.
Trans 400.03 (note)
is
created
to
read:
Trans
400.03
Applicability.
(
note
) The
Wisconsin Environmental Policy Act (WEPA)
, s.
1.11
of the statutes,
requires environmental documentation for major department actions that significantly affect the quality of the human environment. The
National Environmental Policy
Act
(NEPA)
and its implementing regulations
similarly
require environmental
documentation
for
major
federal actions
, such as a federal agency approving the use of federal funds or issuing a permit
for department actions
.
F
or department actions that require federal approval
, t
he
department
prepares
the
required
environmental documentation
.
Where NEPA
applies to a department action,
WEPA
typically also
applies
.
The intent of this chapter
is
to
implement WEPA regulations that are consistent with NEPA and its implementing
regulations
for all
department actions
to which these laws apply
.
SECTION 2.
Trans
400.04 (3) (note) is created to read:
T
rans
400.04
(3) (note) The specific versions of federal regulations and
federal
agency
orders
as
referenced
throughout
this
chapter
are
adopted
in
s.
Trans
400.05
and are reproduced at appendix 1 to this
chapter.
SECTION
3. Trans
400.04 (3) is amended to
read:
Trans
400.04 (3) "Categorical exclusion" means an action which meets the
definition of the term
in the guidelines published by the United States council on
environmental
quality
as
a
federal
rule
in
40
CFR
1508.4
,
July
1,
1990,
and
the
rule
published
jointly
by
the
federal
highway
administration
and
urban
mass
transit
administration
of the United States department of transportation
and in
23 CFR
771.117
,
April 1, 1991, or the procedures published by
23 CFR 771.118
, or
chapter
6
of
order
5050.4B
of
the
federal
aviation
administration
of
the
United
States
department
of
transportation
as
order
5050.4A,
chapter
3,
paragraph
23,
October
8,
1
985
,
or
other
actions
of
the
department
for
which
neither
an
EA,
EIS
nor
other
environmental documentation is required by this
rule.
SECTION
4. Trans
400.04 (4) is amended to
read:
Trans
400.04 (4) "Cooperating agency" means any
Native American tribe,
or
a
ny
local,
state,
or
federal
agency,
other
than
the
lead
or
transportation
agency,
which
has
jurisdiction
by
law over the
proposed
action
or
which
has
special
expertise
with
respect
to
any
relevant
environmental
effect
generated
by
the
proposed
action
or
alternative
.
SECTION
5. Trans
400.04 (5) is amended to
read:
Trans
400.04 (5)
"Department"
means the
Wisconsin department
of
transportation
or
a
local
agency
when
acting
under
the
direction
of
the
department
.
SECTION 6
.
Trans 400.04 (10)
is
amended
to
read:
Trans
400.04
(10)
"ER"
or
"environmental report"
means
a
brief
document
used
internally by the department to demonstrate a proposed action fits the criteria
or
conditions
for
approval
as
a
categorical
exclusion
in
23
CFR
771.117
(d),
April
1,1991,
or
has met the
review criteria
of
paragraph
23.a.
of
chapter
3
of
federal
aviation
administration
order 5050.4A
of
October
8,
1985,
under
s.
Trans
400.08
(1)
(d)
or
has
been properly
coordinated
with other agencies
h
aving jurisdiction by law over
specific
activities.
SECTION 7.
Trans
400.04 (15) is repealed.
SECTION
8.
Trans 400.04 (22m)
is
created
to
read:
Trans
400.04 (22m) "Participating agency" means any Native American
tribe
or
any
local,
state,
or
federal
agency,
other
than
the
lead
agency,
with
an
interest
in
the
project. "Participating
agency"
includes
cooperating
agencies
but
does
not include nongovernmental organizations or other private
entities.
SECTION
9.
Trans 400.04 (24)
is
amended
to
read:
Trans
400.04 (24) "Reevaluation" means the review of
a DEIS or FEIS
an
approved
draft
or
final
environmental
document
to
assess
whether
there
have
been
significant
changes in the proposed action, the affected human environment, the
anticipated environmental impacts, or the proposed mitigation
measures.
SECTION 1
0
.
Trans
400.05 of the administrative code is amended to read:
Trans
400.05 Federal regulations adopted.
Federal regulations,
23 CFR
21
771.115
,
771.117
,
771.119
(a) and 771.123(a), Apr
il 1, 1998, adopted jointly by
the
federal highway administration and urban mass transit administration of
the
United
States department
of
transportation,
and its
federal aviation
administration
order
5050.4A,
chapter
3,
paragraphs
20,
21,
22,
and
23,
October
8,
1985,
pursuant
to
40
CFR
1508.4
,
July
1,
1998,
as
approved
by
the
United
States
council
on
environmental
quality,
and
40
CFR
1506.8
and
1508.17
References
throughout
this
chapter to
federal regulations
and
orders
are
to
the
following specific versions,
which
are
hereby
adopted by the department and are attached hereto in appendix 1
:
23
CFR
ss.
771.115
,
771.117
, and
771.118
, April 1, 2015;
40 CFR
ss.
1500.4
,
1500.5
,
1506.8
,
and
1508.4
,
July
l,
2015;
49
CFR
266.19
,
October
1,
2014;
and
the
United
States
department of transportation federal av
iation administration order
5050.4B,
chapters 6, 7, and 9, April 28,
2006
.
SECTION 11
.
Trans
400.05 (note) is
repealed.
SECTION
1
2
. Trans
400.06 (5)
is
amended to
read:
Trans
400.06
(5)
Measures
necessary
to
avoid, minimize
and
to
mitigate
for
th
e
mitigation
of
adverse environmental impacts
of
proposed actions shall
be
part
of
the
development and evaluation of
alternatives.
SECTION
13.
Trans
400.06 (6) is amended to
read:
Trans
400.06 (6) The department shal
l implement procedures to make
the
WEPA
process
more
useful
to
decision makers
and the
public
by
reducing
paperwork
and
reducing
delay
utilizing
the
means
for
achieving
these
goals
as
specified
in
the
rules of the United States council on environmental quality at
40 CFR 1500.4
and
1500.5
,
July
1,
1990,
that
which
are
attached
hereto
in
appendix
1.
Environmental
documents
shall
be
concise,
clear,
and
to
the point and
emphasize
real
environmental
issues and
alternatives.
SECTION 1
4
.
Trans
400.07 (2)
(intro.)
is amended
to read:
Trans
400.07
(2)
(intro.)
Except
for
actions designated
CE
actions which
do
not
require any environmental documenta
tion, actions
Actions
and procedures
designated
EIS,
EA or
ER
shall require
the
following environmental
documentation:
SECTION 15.
Trans 400.07 (2) (b) 1.
is
amended to read:
Trans 400.07 (2) (b) 1. An EA shall be prepared for those project actions for which the significance of the environmental impact is not clearly established. If
it
is
concluded
from
the
analysis
in
the
EA
that
the
action
is
a
major
action,
an
EIS
shall
be prepared. If it is concluded from the analysis in the EA that the action is not a
major action, the EA shall be revised to constitute a FONSI, and the FONSI shall
serve as the environmental document. The FONSI shall be prepared only after
(See PDF for image)
availability of the EA for public, and cooperating
and participating
agency,
review
and
comment
and
the
incorporation
of
any
appropriate
revisions
resulting
from
the
public
involvement
process. Where a
permit
will
be
required
or
other
agency
coordination
is
specifically
required
by
law,
the
FONSI
may
serve
as
the
vehicle
for
such permit or coordinating agency
approval.
SECTION 16.
Trans
400.07
(2) (c)
(intro.)
is
amended
to read:
Trans
400.07 (2) (c) (intro.)
ER
.
An ER is a procedure followed for an action
that
is
likely
to
fit
the
criteria
for
a
conditional
categorical
exclusion
in
23
CFR
771.117
(d),
April
1,
1998
23
CFR
771.118
(d),
or
federal
aviation
administration
order
5050.4A,
chapter
3,
paragraph
23.a.,
October
8,
1985
,
5050.4B,
chapter
6,
paragraph 605
, or otherwise requires coordination with or concurrence of another
agency.
An
environmental
report,
or
ER,
shall
be
prepared
to
demonstrate
whether
the proposed action does fit the criteria or conditions for approval as a categorical
exclusion and has
been properly coordinated with other agencies having
jurisdiction
by la
w over specific activities.
The ER shall ser
ve
as the department’s record of
coordination with other
agencies having jurisdiction
over
specific
activities,
including the following
activities:
SECTION
17
.
Trans
400.08
(1) (a)
(intro.)
is
amended
to read:
Trans
400.08 (1) (a)
EIS − Environmental Impact Statement
.
The
federal
highway
administration
regulations
at
23
CFR
771.115
(a)
April
1,
1998,
federal
aviation
administration
order
5050.4A,
chapter
3,
paragraph
21,
October
8,
1985,
identify
types
of
federally
funded
actions
which
require
the
preparation
of
an
environmental impact statement.
The following are examples of department
major
actions that
normally
require the preparat
ion of an environmental
impact
statement:
SECTION 18.
Trans
400.08 (1) (a) (note) is
repealed.
SECTION 19.
Trans
400.08 (1) (a) 1.
c
. is
amended
to read:
Trans
400.08
(1)
(a)
1. c.
New
construction
Construction
or
extension
of
a
fixed
rail
transit
facilities including
facility,
such as
rapid rail, light rail, commuter
rail,
and
automated
guideway
transit
or
bus
rapid
transit
that
will
not
be
located
within
an existing transportation
right−of−way
.
SECTION
20
.
Trans
400.08 (1) (a) 2.
a
. is
amended
to read:
Trans
400.08 (1) (a) 2. a.
First time
Unconditionally
approving or funding
the
first
airport
layout
plan
approval
or
airport
location
approval
for
a
new
commercial
service
airport
located in a
standard
metropolitan statistical
area.
SECTION 21.
Trans
400.08 (1) (a) 2.
b
. is
amended
to read:
Trans
400.08 (1) (a) 2. b.
Federal financial participation in, or airport
layout
plan approval of,
Unconditionally
approving or funding
a new runway
capable of
handling
to
accommodate
air
carrier aircraft
at a
commercial service airport
located
in a
standard
metropolitan statistical
area.
SECTION 22.
Trans
400.08
(1)
(a)
3.
(
note
)
is
amended to
read:
Trans
400.08 (1) (a) 3. (
note
)
The federal highway administration
regulations
at
23
CFR
771.115
(a)
and
federal
aviation
administration
order
5050.4B,
chapter
9,
paragraph
903, identify
types
of
federally funded actions which normally require the
preparation of an environmental impact statement.
The federal railroad
administration regulation at
49 CFR 266.19
,
October 1, 1997,
generally identifies
actions that do not require an environmental impact
statement.
SECTION
23.
Trans
400.08
(1) (b)
(intro.)
is
amended
to read:
Trans
400.08 (1) (b) (intro.)
EA − Environmental Assessment
.
EA
procedures
apply
to
actions
for
which
the
significance
of
the
environmental
impacts
is
not
clearly
established and require the preparation of an environmental assessment to make
that determination.
The federal highway administration regulations at
23 CFR
771.115
(c) April 1,
1998, and the federal
aviation
order
5050.4A, chapter 3, paragraph
22,
October
8,
1985
identify
the
types
of
federal
actions
that
require
the
preparation of an
environmental assessment.
Examples
of the
department’s
actions
that are required to follow the EA procedure are as
follows:
SECTION
24
.
Trans 400.08
(1) (b) 1.
is
repealed
and
recreated to
read:
Trans
400.08 (1) (b) 1. ‘Highways and transit.’ In addition to actions the
department determines meet the criteria for an EA action under this
chapter,
the
department
may
apply
EA
procedures
to
the
highway
and
transit
actions
generally
identified in
23 CFR 771.115
(c).
SECTION
25
.
Trans 400.08
(1) (b) 2.
is
repealed
and
recreated to
read:
Trans
400.08 (1)
(b)
2.
‘Airports.’
In addition to actions the department
determines meet the criteria for an EA action under this
chapter,
the department
may apply EA procedures to actions generally identified in federal aviation
administration order
5050.4B.
SECTION
26
.
Trans
400.08 (1) (b) 3.
is
amended
to
read:
Trans
400.08 (1) (b) 3. Administrative facilities.
Construction
Examples of
department
actions
regarding
administrative
facilities
to
which
EA
procedures
normally apply are: construction
of a new or replacement administrative
building,
including
an
office
building,
state
patrol
academy,
driver
licensing
and
testing
station,
state
patrol
communications
building,
or
other
similar
facility,
at
a
new
location.
SECTION 27
.
Trans
400.08
(1)
(b)
5.
(
intro
.)
is
amended to
read:
(See PDF for image)
Trans
400.08 (1) (b) 5. (
intro
.)
Policy,
contract, standard, and specification
changes.
Examples
of department actions regarding
policy,
contract, standard,
and
specification changes to which EA procedures normally apply
are:
SECTION 28
.
Trans
400.08 (1) (c) (intro.) is renumbered
Trans
400.08 (1) (d)
(
intro
.)
and
amended to
read:
Trans
400.08
(1)
(d)
(intro.)
ER − Environmental
Report
.
ER
procedures
apply
to
actions
identified
in
23
CFR
771.117
(d),
April
1,
1998,
and
federal
aviation
administration order 5050.4A, chapt
er 3, paragraph
23a.,
October
8,
1985.
ER
actions require documentation with an environmental report. The environmental
report
shall demonstrate
that the
action meets
the
criteria
for
a
categorical
exclusion
by demonstrating that specific conditions
or criteria for
t
he action
have
been
addressed and
that significant environmental effects
will
not
result.
Examples
of
ER
actions to which ER procedures apply are as
follows:
SECTION
29
.
Trans 400.08
(1) (c) 1.
is
repealed
and
recreated to
read:
Trans
400.08 (1)
(c)
1. ‘Highways
and
transit.’ In addition to actions the
department
determines
meet
the
criteria
for
a
CE
action
under
this
chapter,
the
department
may
classify
as
CE
actions
those
highway
and
transit
actions
identified in
23 CFR 771.117
(c) and
23 CFR 771.118
(c).
SECTION
30
.
Trans 400.08
(1) (c) 2.
is
repealed
and
recreated to
read:
Trans
400.08 (1)
(c)
2. ‘Airports.’
In addition to actions the department
determines
meet the
criteria
for
a CE
action under
this
chapter,
the
department
may
classify
as CE
actions those
airport
actions identified
in
f
ederal
aviation
administration order
5050.4B.
SECTION
31
.
Trans
400.08 (1) (c) 3.
is
renumbered
Trans
400.08 (1) (d) 3.
and
amended to
read:
Trans
400.08 (1)
(d)
3. Administrative
facilities.
Extensive
Examples
of
department
actions
regarding
administrative
facilities
to
which
ER
procedures
normally apply are: extensive
remodeling, expansion or modification of an
administrative building, including an office building, state patrol
academy,
driver
licensing and
testing station, state patrol communications building,
or
other
similar
facility,
which
either substantially increases the capacity of the
facility
or substantially changes its
use.
SECTION
32
.
Trans
400.08 (1) (c) 4.
is
renumbered
9
Trans
400.08 (1) (d)
4.
SECTION
33
.
Trans
400.08 (1) (c) 5.
is
renumbered
Trans
400.08
(1)
(d)
5.,
and
Trans
400.08
(1)
(d)
5.
(intro.),
as
renumbered,
is
amended
to read:
Trans
400.08 (1) (d)
5.
(
intro
.)
Policy,
contract, standard and specification
changes.
Examples of department actions regarding
policy,
contract, standard,
and
specification changes to which ER procedures normally apply
are:
SECTION 34
.
Trans
400.08 (1) (d) (intro.) is
renumbered
Trans
400.08 (1) (c) (intro.) and amended to
read:
Trans
400.08 (1)
(c)
(intro.)
CE −Categorical
Exclusions
. CE actions
are
categorically excluded from the requirement
to
prepare environmental
documentation
pursuant to the rule published by the United States department
of
transportation in
23 CFR 771.117
, April
1, 1998,
or
its
federal
aviation
administration
order 5050.4A, chapter
3,
paragraph
23,
October
8,
1985.
CE
actions
do not
require environmental documentation
because, based
on
past
experience
with
similar
actions,
they
do
not
involve
significant
environmental
impacts.
They
are
actions
which
do
not
induce
significant
impacts
to
planned
growth
or
land
use
for
the
area, do not require the relocation of
significant numbers of people,
do not have a significant
impact
on
any
natural,
cultural,
recreational,
historic
or
other
resource,
do not
involve significant
air,
noise,
or
water quality impacts,
do not
have
significant
impacts
on
travel patterns,
and
do
not
otherwise, either individually
or
cumulatively,
have any sign
ificant environmental impacts.
Examples of CE actions include the
following:
S
ECTION
35
.
Trans 400.08
(1) (d) 1.
is
repealed
and
recreated to
read:
Trans
400.08 (1) (d) 1. ‘Highways and transit.’ In addition to actions the
department determines meet the criteria for an ER action under this
chapter,
the
department
may
apply
ER
procedures
to
the
highway
and
transit
actions
identified in
23 CFR 771.117
(d) and
23 CFR 771.118
(d).
SECTION
36
.
Trans 400.08
(1) (d) 2.
is
repealed
and
recreated to
read:
Trans
400.08
(1)
(d)
2. ‘Airports.’ In addition to actions the department
determines meet the criteria for an ER action under this
chapter,
the department
may
apply
ER procedures
to
actions identified
in the
federal aviation
administration
order
5050.4B.
SECTION
37
.
Trans
400.08 (1) (d) 3.
is
renumbered
Trans
400.08 (1) (c) 3.
and
a
mended to
read:
Trans
400.08 (1) (c) 3. Administrative facilities.
Minor
Examples of
department
actions
regarding
administrative
facilities
that
are
normally
classified
as CE actions are:
minor
construction or expansion of an airport
facility,
such as
a
runway,
taxiway,
apron,
service
or
entrance
road,
or
passenger
handling
or
parking
facility.
SECTION
38
.
Trans 400.08 (1) (d) 4.
is
renumbered
to
Trans 400.08 (1) (c)
4.
SECTION
39
.
Trans 400.08 (2) (a) is amended to read:
Trans
400.08 (2) (a)
Activities exempt by statute or approved as categorical exclusions by the United States council on environmental quality pursuant to
40 CFR 1508.4
, July 1,
1998
.
SECTION
4
0
.
Trans
400.08
(2) (f)
is
amended
to
read:
Trans
400.08
(2)
(f)
The
budget
request
of
the department
as a
whole
submitted
to the department of administration and legislature pursuant to
ss.
s.
6.42
and
19.45 (12)
,
Stats.
SECTION 4
1
.
Trans
400.09 (4) (e)
is amended
to
read:
T
rans
400.09 (4) (e) Ensure the required involvement of any cooperating
and
participating
agencies.
SECTION
4
2
.
Trans
400.10
(3) (c)
is
amended
to
read:
Trans
400.10
(3)
(c)
In
addition
to
the
contents required
under
par.
(a),
the
FEIS
shall
also
incorporate
the
comments
received
during
the
DEIS
and
subsequent
hearing processes.
A response shall be made to each
substantive
environmental
issue
identified
in the
comments
and not
addressed
in the
DEIS.
The
response
shall
include a discussion of the environmental issue, including the identification of the
efforts to resolve the issue and the commi
tments to specific measures to
mitigate
adverse impacts and enhance beneficial
effects.
SECTION
4
3
.
Trans
400.10 (4) (a) 1.
is
renumbered
Trans
400.10 (4) (a)
1r.
and
amended to
read:
Trans
400.10
(4)
(a)
1r.
Stimulation of
secondary
indirect
environmental
effects.
SECTION
4
4
.
Trans
400.10 (4) (a) 1g.
is
created
to
read:
Trans
400.10 (4) (a) 1g. The content requirements for an ER under sub.
(5).
SECTION
4
5
.
Trans
400.10 (4) (a) 5.
is
amended
to
read:
Trans
400.10 (4) (a) 5. The degree of controversy
on environmenta
l
grounds
associated with the proposed
action.
SECTION
4
6
.
Trans
400.10 (5) (intro.) is amended
to read:
Trans
400.10 (5) (intro.) ER
CONTENT.
The ER may be completed on
screening
sheets developed
by
the
department.
The ER
shall reflect compliance with
the
applicable
laws
and
regulations
of
other
agencies,
and
shall
include
all
of
the
following:
SECTION
4
7
.
Trans
400.11
(1) (b) (intro.)
is
renumbered
Trans 400.11
(1) (b) and amended to
read:
Trans
400.11
(1) (b)
Notice of availability of a SEE
. A notice of availability
of
a
system
plan
and
its
SEE
shall
be
published
in
the
official
state
newspaper
and
o
ther
newspapers,
as
deemed appropriate.
The
notice
may
be
combined
with
a
notice
of
opportunity
for a
public hearing
on the
system plan.
The
notice shall:
as
provided
in sub.
(8).
SECTION
4
8
.
Trans
400.11
(1)
(b)
1.
t
o
4.
are
repealed.
SECTION
49
.
Trans
400.11
(2) is amended to
read:
Trans
400.11
(2)
LEIS.
In
the
case
of
a
departmental
report
or
recommendation
on a d
epar
tment−initiated proposal for
legisla
tion that contains major
and
significant
new
proposals
that
are
not
within
the
scope
of
any
categorical
exclusion,
the department shall prepare a LEIS substantially following the guidelines of the
United
States council
on
environmental quality
in
40
CFR
1506.8
,
July
1,
1998
.
This
includes transmission of the LEIS to the legisla
ture concurrent with or within
30
days
after
the
legislative
proposal
is
submitted
to
the
legislature,
provided
that
the
LEIS
must
be
available
in
time for
legislative hearings
and
deliberations,
and 5
days
in advance. There is no scoping requirement and the statement shall be prepared
in
the
same
manner
as
a
DEIS,
but
shall
be
considered
the
detailed
statement
required by s.
1.11
(2) (c)
, Stats. Any comments
on the LEIS shall be given to
the
department
which shall forward
them
along
with its own
responses
to
the
legislative
committees with
jurisdiction.
SECTION 5
0
.
Trans
400.11
(3) (b) (intro.)
is
renumbered
Trans 400.11
(3) (b) and amended to
read:
Trans 400.11
(3) (b)
Notice of availability of DEIS
. A notice of availability
of
the
DEIS
shall
be
published
in
the
appropriate
official
local
newspaper
or
in
a
newspaper
with
general
circulation
within
the
area
affected
by
the
proposed
action.
If
the
proposed
action
is
of
statewide
interest,
such
notice
shall
also
be
published
in
the official state newspaper. Such notice shall include:
as provided in sub.
(8).
SECTI
ON 5
1
.
T
rans
400.11
(3)
(b)
1.
to
4.
are
repealed.
SECTION
5
2
.
Trans
400.11
(4) is amended to
read:
Trans 400.11 (4) FEIS
and ROD
. The FEIS
and ROD
shall be printed and distributed,
and
a
notice
of
availability
of
the
FEIS
shall
be
published
,
in
the
same manner
as
provided
for
a
DEIS
under sub. (3)
,
except that
.
If
separate
FEIS
and
ROD
documents
are
necessary
under
s.
Trans
400.13
(1)
(am)
,
the
decision
to
proceed
with
the
proposed
action
and
to
sign
the
ROD
shall
not
be
made
sooner
than
30
days
after
the date of publication of the notice of availability of the FEIS or 90 days after
the
date of publication of the notice of availability of the
DEIS.
S
ECTION 5
3
.
Trans
400.11
(5) (a) is amended to
read:
Trans
400.11
(5)
(a)
Public availability of EA
. The EA
shall
be
made
available
for
public
inspection
at
the
department’s
central
office,
the
appropriate
department
region
office,
public
libraries
as
identified
under
sub.
(3)
(
a
)
6.,
and
the
office
of
the
local unit of government having requested the
proposed action. A charge may
be
assessed
to
cover
reproduction
and
handling
costs
for
requested
copies
of
the
EA
or
portions
thereof.
SECTION
5
4
.
Trans 400.11
(5) (b) (intro.)
is
renumbered
Trans 400.11
(5) (b) and amended to
read:
Trans
400.11
(5)
(b)
Notice of availability of EA
. A notice of availability of
the
EA
shall
be
published
in
the
appropriate
official
local
newspaper
or
in
a
newspaper
of
general circulation within
the area
affected
by
the
proposed action.
If
the
proposed
action
is
of
statewide
interest,
the
notice
shall
also
be
published
in
the
official
state
newspaper. The notice may be combined with the notice of opportunity for public
hearing provided for under
par.
(c).
The
notice shall:
as provided in sub.
(8).
SECTION
5
5
.
Trans
400.11
(5)
(b)
1.
t
o
5.
a
re
repealed.
SECTION
5
6
.
Trans
400.11
(5) (c)
is
amended
to
read:
Trans
400.11
(5)
(c)
Notice
of
opportunity
for
to
request
a
public
hearing
on
EA
.
A
If the
department determines
to
afford
the
opportunity
for a
public hearing
on
an
EA
under
s.
Trans
400.12
(4)
(a)
,
a
notice
of
opportunity
for
to
request
a
public
hearing
shall
be
published
when
the
EA
is
completed
and
made
available
for
inspection
as
provided
for
under
par.
(
a
).
Publication
of
the
notice
shall
be
in
the
appropriate
official
local
newspaper
or
in
a
newspaper
of
general
circulation
within
the
area
affected
by
the
proposed action. Publication shall
also
be in
the
official
state
newspaper if the proposed action is of statewid
e interest. The notice shall
invite
submission
of
requests
for
a
public
hearing
on
the
EA
within
30
days
after
the
date
of publication of the notice. The notice shall include a description of the
procedure
for requesting a public
hearing.
SECTION
5
7
.
Trans
400.11
(7)
is
renumbered
Trans
400.11 (7) (a) and amended to
read:
Trans
400.11
(7)
(a) The
ER
shall
upon
request
be
made
available
for
inspection
at
the
department’s
central
office,
the
appropriate
department
region
office,
and
the
office of the local unit of government having reque
sted the proposed action.
A
Subject to
par.
(b), a
notice of availability shall not be required for an ER. A
charge
may be
assessed
to
cover reproduction
and
handling costs
for
requested copies
of
the
ER.
SECTION
5
8
.
Trans
400.11
(7) (b) is
created
to
read:
Trans
400.11
(7)
(b)
If
the
department
determines
to
hold,
or
afford
the
opportunity
for,
a public hearing on an ER action under s.
Trans
400.12 (4) (b)
,
the
department
shall
make
the
ER
publicly
available
and
provide
notice
of
public
availability under sub. (5)
as
if the ER were an
EA.
SECTION
59
.
Trans 400.11
(8)
is created to
read:
Trans
400.11
(8)
NOTICE
OF
AVAILABILITY.
(a) When
an
environmental
document
listed under
par.
(c)
is
made available to the publ
ic by the department, a notice
of
availability
shall
be
published
in
the
appropriate
official
local
newspaper
or
in
a
newspaper
of
general
circulation
within
the
area
affected
by
the
proposed
action.
If
the
proposed
action
is
of
statewide
interest,
the
notice
shall
also
be
published
in
the
official state newspaper. The notice
shall:
1. Briefly describe the proposed
action.
2. Announce the completion and availability of the environmental
document.
3. List the locations where the environmental document may be
inspected.
4.
Except
in
the
case
of
a
ROD
or
a
combined
FEIS
and
ROD
document,
invite
the
public
to
furnish
written
comments
on
the
proposed
action;
indicate
where
comments
are
to
be
sent;
and
indicate
the
date
that
such
comments
must
be
submitted to the department as determined under
par.
(b).
(b)
The
comment
period
for
specific
environmental
documents
shall
be
as
follows:
1. For a DEIS, the comment period may not be less, nor without cause
longer
than, 45 days after the date of the publication of the notice of
availability.
2.
If
the
department determines
a
separate
FEIS and ROD are
necessary
under
s.
Trans
400.13
(1)
(am)
,
the
comment
period
for
the
FEIS
may
not
be
less,
nor
without
cause
longer
than,
30
days
after
the
date
of
publication
of
the
notice
of
availability.
3. For an EA, and for an ER if the
department determines
it
will hold
or
afford
the
opportunity
for
a
public hearing
under
s.
Trans
400.12
(4) (b)
, the
comment
period
may not be
less,
nor
without cause longer than,
30
days after
the
date
of
publication
of the notice of
availability.
(c) A notice of availability shall be published for the following
environmental
documents:
1.
SEE.
2.
DEIS.
3. FEIS and ROD, or a combined FEIS and ROD.
6
4. EA.
5.
ER,
if
the
department
determines
that
it
will
hold
or
afford
the
opportunity
for a public hearing under s.
Trans
400.12 (4)
(b)
.
(d)
The
notice
of
availability
of
the
environmental
document
may
be
combined
with other public notices required under this
chapter.
SECTION
6
0
.
Trans
400.12 (3) (a) is amended to read:
Trans
400.12 (3) (a)
Whenever
a proposed action requires an EIS,
the
department
shall hold
a
public
hearing
on the
DEIS
no
sooner than
15
days after its
notice of availability is published. The hearing shall be held prior to the
determination
of
the
recommended
selection
of
the
final
course
of
action
for
the
proposal
, but the department may present a preferred
alternative
.
SECTION
6
1
.
Trans
400.12 (4) (title) is amended
to
read:
Trans
400.12
(4)
(title)
PUBLIC
HEARING
,
OR
OPPORTUNITY
FOR
PUBLIC
HEARING,
ON
EA
OR
ER
.
SECTION
6
2
.
Trans
400.12
(4)
is
renumbered
Trans
400.12 (4) (a) and amended to
read:
Trans
400.12
(4)
(a)
Unless
EA
procedures indicate
the
action
is an
EIS
action,
the
department
shall
hold,
or
afford
the
opportunity
for,
a
public
hearing
on
an
EA action prior to the issuance of a FONSI.
A public hearing on an EA may be held
by
the
department
at the
department’s
discretion
and
shall
be
held
if a
request
for
such
a hearing is received by the department within the time specified in the notice of
opportunity
for
to
request
a
public hearing
provided
for
under
s.
Trans
400.11
(5)
(c)
.
(c)
Whenever
the
department
determines
to
hold
a
public
hearing
or
approves
a timely request for a public hearing under this subsection, the department shall
proceed
in
the
same
manner
as
provided
for
a
public
hearing
on
a
DEIS
under
sub.
(3),
except
that
the
public
hearing
shall
be
held
no
sooner
than
15
days
after
publication of the public hearing notice and the identity of the EA
or ER
shall be
referenced in the public hearing
notice.
SECTION
6
3
. Trans 400.12
(4) (b) is
created
to
read:
Trans
400.12 (4) (b)
The
department at its sole discretion may determine to
hold a public hearing or afford the opportunity for a public hearing for ER
actions.
If
the
department
determines
to
afford
the
opportunity
for
a
public
hearing
for
an
ER
action, the department shall follow EA procedures under
par.
(a).
SECTION 64.
Trans
400.13 (1) (a) is repealed.
SECTION 6
5
.
Trans
400.13 (1) (am) is created to read:
Trans
400.13 (1) (am)
To
the maximum extent practicable, the department
shall expeditiously develop a single document that consists of an FEIS and ROD,
unless any of the following
applies:
1.
The
FEIS
makes
substantial
changes
to
the
proposed
action
that
are
relevant to environmental or safety
concerns.
2.
There are significant new circumstances or information relevant to
environmental concerns and that bear on the proposed action or the impacts of
the
proposed
action.
SECTION
6
6
.
Trans
400.13
(1) (b)
(intro.)
is
amended
to read:
Trans
400.13 (1) (b) (intro.) The record of decision
, whether issued in
combination with an FEIS or
separately,
shall contain the following
information:
SECTION 6
7
.
Trans
400.13 (2) (a) is amended to
read:
Trans
400.13 (2) (a) The decision to revise an EA to constitute a FONSI
shall
not
be
made
until
after
the
end
of
the
30−day
comment
period
specified
in
the
notice
of availability of the EA provided for under s.
Trans 400.11
(5) (b)
(8)
.
SECTION 6
8
.
Trans
400.13 (3) is created to read:
Trans 400.13
(3) ER. (a)
Unless
the
department determines
to
hold,
or
afford
the opportunity
for,
a public hearing under s.
Trans
400.12 (4) (b)
, an approved
ER
document constitutes the department’s final decision on a proposed
action.
(b)
When the
department holds,
or
affords
the
opportunity
for,
a
public
hearing
on an ER, the decision to revise an ER to constitute a final decision on a proposed
action shall not be made until after the end of the comment period specified in
the
notice of availability of the ER provided for under s.
Trans 400.11
(8)
.
(c) If potentially significant impacts have not been identified during the ER
availability
period,
the
department
shall
revise
the
ER
as
appropriate
and
shall
attach
a
summary
of
the
public
hearing,
if
a
hearing
was
held,
and
a
summary
of
any
comments received and responses thereto. These items, along with a statement
of no
significant
impact,
shall
constitute
the
final
action
determination
document
and
the record of
decision.
(d) If, at any point in the ER process, the department determines that the
proposed action may have a significant impact on the quality of the
human
environment,
an
EIS
shall
be
prepared
before
proceeding
with
the
proposed
action.
SECTION
69
.
Trans
400.14 (1) (a) is amended to read:
Trans
400.14
(1) (a) A
reevaluation
of a
DEIS
shall
be
prepared
if 3
years have
elapsed before
the
date
of
publication
of
the
notice
of
availability
of
the
FEIS provided for under s.
Trans 400.11
(4)
. A reevaluation of a DEIS shall also be prepared
any
time
prior
to
the
date
of
publication
of
the
notice
of
availability
of
the FEIS
if,
in
the
judgment
of
the
department,
there
have
been
significant
changes
in the proposed action, the affected human environment, the anticipated
environmental impacts or the proposed mitigation measures. If in either case the
r
eevaluation indicates or confirms any such significant changes,
a
new
environmental document or
supplemental DEIS shall be prepared
prior to
proceeding
with
the
proposed action
. The
supplemental
DEIS
shall
be
prepared
and
processed
in
the
same
manner
as
a
DEIS
under
this
chapter.
Preparation
of
the
supplemental
DEIS
shall
not
require
withdrawal
of
previous
approvals
for
those
aspects
of
the
proposed
action
not
directly
affected
by
the
changed
condition
or
new
information.
SECTION 7
0
.
Trans
400.14 (2) (a) is amended to
read:
Trans
400.14
(2)
(a)
A
reevaluation
of a
FEIS shall
be
prepared
any
time
there
have been, in the judgment of the department, significant changes in the
proposed action,
the
affected
human
environment,
the
anticipated
environmental
impacts
or
the
proposed mitigation measures.
If the
reevaluation confirms
any
such
significant
changes, a
new environmental document or
supplemental FEIS shall be prepared
prior to proceeding with the proposed
action
. The supplemental FEIS shall be
prepared and processed in the same manner as a FEIS under this
chapter.
Preparation
of
the
supplemental
FEIS
shall
not
require
withdrawal
of
previous
approvals
for
those
aspects
of
the
proposed
action
not
directly
affected
by
the
changed condition or new
information.
SECTION 7
1
.
Trans
400.14 (3) is created to read:
Trans
400.14
(3)
REVISION
OF FINAL ACTION
DOCUMENT. (a) The
department
may
revise a final action document, including a ROD, FONSI, or ER, in order to do
any
of the
following:
1.
Select a different alternative, if the new selected alternative is
fully evaluated
in
the
FEIS,
EA,
or
ER
to
the
same
degree
as
the
originally
selected alternative.
2.
Make substantial changes to mitigation measures or findings discussed
in the final agency
action.
(b) If the department revises a final action document under
par.
(a), those agencies
that reviewed the
FEIS,
EA,
or
ER
shall
be
given
an
opportunity
to
review
and comment on the revised final action document.
To
the extent practicable, the approved revised final action document shall be provided to all
persons, organizations, and agencies that received the FEIS, EA, or
ER.
SECTION 7
2
.
EFFECTIVE DATE. This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s.
227.22 (2) (intro.)
, Stats.
(END OF RULE TEXT)
