PROGRAMMATIC CATEGORICAL EXCLUSION AGREEMENT
BETWEEN
THE FEDERAL HIGHWAY ADMINISTRATION
AND
THE OHIO DEPARTMENT OF TRANSPORTATI ON
February 13, 2015

Agreement Number 18769 (Supersedes Agreement Number 16400)

Recitals

1. The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4370h (2014), directs federal agencies to consider the environmental impacts of their proposed actions though preparation of an Environmental Assessment (EA) or Environmental Impact Statement (EIS) unless a particular action is categorically excluded.
2. The Federal Highway Administration (FHWA) is a federal agency subject to NEPA that oversees the distribution and spending of federal funds under the Federal-aid Highway Program, which are federal actions under NEPA.
3. FHWA has promulgated a number of Categorical Exclusions (CE) listed in 23 CFR 711.117 for certain actions that it has determined do not individually or cumulatively have a significant effect on the human environment.
4. The Ohio Department of Transportation (ODOT) is a state agency that undertake transportation projects using federal funding received under the Federal-aid Highway Program and may assist FHWA in fulfilling its obligations under NEPA pursuant to 23 CFR 771.109, 771.113, and 771.117(b).
5. The Ohio Rail Development Commission (ORDC) is a state agency within ODOT that undertakes transportation projects using federal funding received under the Federal-aid Highway Program. When ODOT is cited in this document, it shall be deemed to include the ORDC in terms of responsibilities and obligations in processing CEs involving FHWA funded projects.
6. Section 1318(d) of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public law 112-141, 126 Stat. 405 (July 6, 2012), allows FHWA to enter into Programmatic Agreements (PA) with the States that establish efficient administrative procedures for carrying out environmental and other required project reviews, including agreements that allow a State to determine on behalf of FHWA whether a project is categorically excluded from preparation of an EA or EIS under NEPA.
7. FHWA, Ohio Division and ODOT (the parties) enter into this PA pursuant to 23 CFR 771.117(g) to allow ODOT to assist FHWA in making CE determinations subject to the conditions contained herein.

Parties
The Parties to this Agreement are the FHWA and ODOT.

Authorities
This agreement is entered into pursuant to the following authorities:

1. National Environmental Policy Act, 42 U.S.C. 4321 - 4370
2. Moving Ahead for Progress in the 21st Century Act, P.L. 112-141, 126 Stat. 405, Sec. 1318(d)
3. 40 CFR parts 1500 - 1508
4. DOT Order 5610.1C
5. 23 CFR 771.117

Introduction
The FHWA, Ohio Division follows the philosophy that the goal of the NEPA process is better decisions and not bigger documents. The primary purpose of this Agreement is to increase flexibility, streamline the environmental process and reduce paperwork. This Agreement provides for the expeditious processing of CE actions by ODOT, under the guidance and, in accordance with this agreement, with the approval of FHWA. Project documentation shall be developed by ODOT that demonstrates that CE actions meet the criteria established under this Agreement and that individual actions meet the definition of a CE defined in 23 CFR 771.117(a) (see Council on Environmental Quality (CEQ] definition below) and have no unusual circumstances defined in 23 CFR 771.117(b) that would require the preparation of either an EA or EIS. The FHWA shall rely upon ODOT's CE determinations as part of consideration of notices to proceed to final design, right-of-way purchases, or construction. The FHWA agrees that ODOT shall complete the task of analyzing environmental impacts and preparing environmental documentation for NEPA compliance pursuant to 23 CFR 771.109, 771.113, and 771.117(b).

It is agreed to by ODOT that all conditions contained herein will be satisfied for all projects processed under this Agreement. This Agreement supersedes all previous CE processing agreements held between FHWA and ODOT, and applies to all projects that involve FHWA funding or approvals.

In accordance with FHWA regulations (23 CFR 771, "Environmental Impact and Related Procedures"), CEs are actions which meet the definition contained in the CEQ regulations at 40 CFR 1508.4, and based on past experience with similar actions, 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; or
• Do not otherwise, either individually or cumulatively, have any significant environmental impacts, and are, therefore, categorically excluded from the requirement to prepare an EA or EIS.

The term "Significant" as used in NEPA is defined at 40 CFR 1508.27 and requires consideration of both context and intensity.

This agreement has been developed to be in conformance with the policy and procedures for the environmental processing of Class 11-CE actions as defined in Section 23 CFR 771.117 (and as amended).

General

The provisions of this Agreement provide for:

1. ODOT to assure compliance with all applicable federal environmental and related requirements.
2. A process that is consistent in documenting information that complies with environmental requirements on a statewide basis.
3. A process that is concise and easy to follow.
4. A process that provides the proper information for making appropriate decisions.
5. A process that uses technology to reduce paperwork.

For any action processed in accordance with this Agreement that involves unusual circumstances, ODOT will conduct appropriate environmental studies to determine if the CE classification is proper per 23 CFR 771.117(b). Such unusual circumstances include, but are not limited to: Significant environmental impacts, Substantial controversy on environmental grounds, Significant impacts on properties protected by Section 4(f) of the DOT Act or Section 106 of the National Historic Preservation Act, or Inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to the environmental aspects of the action.

CE Actions
All CEs will be classified as "C" or "D" listed CEs in accordance with 23 CFR 771.117 and this Agreement. The appropriate determination of a CE is based upon the type of action and project impacts. The documentation and approval process are discussed on the following pages and all actions will be processed and documented with ODOT's Online CE System or its successor.

In accordance with this Agreement, C1 projects do not require additional documentation beyond determination that they meet the criteria presented in Appendix A Projects defined as "C2" require documentation as a result of changes implemented by MAP-21 (P.L. 112-141) and as presented in Appendix B. Projects identified as meeting the criteria of 23 CFR 771.117(d) are processed according to context and intensity of impacts to environmental resources, and as presented in Appendix C.

Pursuant to 23 CFR 771.117(d), projects may qualify as a CE if appropriately analyzed and are documented to meet CE criteria. These "documented" or "D" project actions can include projects with impacts other than listed as C1 or C2 actions. Projects in this category must meet the intent of 23 CFR 771.117(d) in that they must satisfy the criteria for CE Classification, cannot involve significant environmental impacts, and require environmental analysis and documentation that serves as a basis for making a CE determination.

• The District Environmental Coordinator (DEC) shall make CE determinations of C1 or C2 actions on behalf of FHWA.
• The DEC will make CE determinations of D1 actions on behalf of FHWA.
• ODOT's Office of Environmental Services (OES) will make CE determinations of D2 actions on behalf of FHWA.
• FHWA is responsible for the approval of D3 CE actions after taking into account ODOT's recommendation for CE classification of such action.

Environmental impact thresholds for each are defined in Appendices A through C. It is the responsibility of ODOT to ensure that each project processed under this Agreement will be documented in accordance with the thresholds specified in Appendices A through C.

This Agreement shall not preclude ODOT from requesting FHWA to individually review and approve a project action when deemed necessary by ODOT even though the action falls within the bounds of this Agreement. This Agreement shall also not preclude FHWA the right to request of ODOT individual review for any CE actions.

Class of Action Higher than a Categorical Exclusion
When the significance of impacts of a transportation project proposal is uncertain or an action does not meet any of the classifications for a "C" or "D" classified CE, as outlined in this Agreement, ODOT-OES will consult with FHWA to determine a class of action per 23 CFR 771.

Re-Evaluations
It may become necessary for ODOT to re-evaluate the CE classification for projects having CE determinations. If there is a change in project scope or impacts, a written re-evaluation will be required prior to further approvals being granted. The re-evaluation of a CE shall be conducted by ODOT for the following circumstances:

• If the project scope has changed since the last CE determination
• If the project impacts have changed since the last CE determination

If the project has not commenced within five years from the project's CE determination and the environmental studies have not been re-examined during that time, those studies shall be evaluated and ODOT shall conduct agency coordination as appropriate. This may prompt reevaluation of the CE determination to document any changes to the project as a result of agency coordination.

A written re-evaluation shall be completed by ODOT if there are substantial changes in the proposed action that are relevant to environmental concerns or if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed actions or its impacts.

The signature authority for re-evaluations will be the same as for the original CE document unless the re-evaluation indicates a change in the level of document is needed. Prior to filing the plan package with Central Office, District Environmental Staff will complete the Environmental Consultation Form (ECF) or its successor. It is the responsibility of ODOT to ensure that the conditions of the project have not changed and the NEPA determination remains valid for the action.

ODOT Performance Measures

1. ODOT-OES will provide FHWA access to a list of active projects being processed as 03 CEs via the CE On-line System. Active projects are those projects currently programmed on the existing 4-year Statewide Transportation Improvement Program (STIP). Additionally, ODOT-OES will provide FHWA access to a list of projects processed under this agreement quarterly.
2. ODOT must maintain adequate organizational and staff capability and expertise, or procure through consultant services some or all of the technical expertise needed, to effectively carry out the provisions of this Agreement. This includes, without limitation:
   1. Using appropriate technical and managerial expertise to perform the functions set forth under this Agreement; and
   2. Devoting adequate financial and staff resources to carry out the processing of projects under this Agreement.
3. ODOT shall have protocols to ensure that environmental commitments are fulfilled.
4. ODOT will continue to offer training as part of its consultant prequalification process to ensure high quality standards in documentation preparation.
5. ODOT will monitor its processes relating to project approvals, environmental analysis and project file documentation and check for errors and omissions. ODOT shall take corrective action as needed and will document quality control activities and any corrective actions taken.
6. ODOT shall ensure that project records are available to the public consistent with requirements applicable to State agencies under Ohio Revised Code §149.43 (Open Records law).

Monitoring

Full compliance with the Agreement will be determined by FHWA through completion of process reviews on a triennial basis through process reviews.

• Process reviews of all actions classified as C1, C2 and D1 will be conducted by ODOT-OES, and a report detailing the findings, recommendations and best practices will be provided to FHWA
• A process review of all actions classified as D2 will be conducted by FHWA

The results of such reviews will be used to determine what agreement modifications, if any, may be needed.

Nothing in this Agreement shall prevent FHWA from undertaking other monitoring or oversight actions, including process reviews, with respect to ODOT's performance under this Agreement. In its sole discretion, FHWA may require ODOT to perform other quality assurance activities, including other types of monitoring, as may be reasonably required to ensure compliance with applicable Federal laws and regulations.

Term, Renewal, Termination, Amendments Modification and Administrative Modifications This Agreement shall have a term of five years, beginning on the date of the last signature. This Agreement is renewable for additional terms of five years each, if ODOT requests renewal and FHWA determines that ODOT has satisfactorily carried out the provisions of this Agreement. In considering any renewal of this Agreement, FHWA will evaluate the effectiveness of the Agreement and its overall impact on the environmental review process.

ODOT shall post an executed copy of this Agreement on its web site, available to the public.

At least six (6) months prior to the end of each five year term, ODOT and FHWA shall meet to discuss the results under the Agreement and consider amendments to this Agreement. If the parties do not renew the Agreement, then it shall expire at the end of the term then in effect. Either party may terminate this Agreement at any time by giving at least a 30 day notice to the other party.

Any party to this Agreement may request that it or the Appendices be amended or administratively modified to reflect changes, whereupon the parties shall consult to consider such an amendment. If the parties agree to amend this Agreement or the Appendices, then FHWA and ODOT may execute an amendment with new signatures and dates after all necessary reviews are completed. The term of the Agreement shall remain unchanged unless otherwise expressly stated in the amended Agreement. Minor non-substantive changes to the Appendices may be made through appropriate clarification guidance to better refine implementation of the agreement based on experience. This will not require re-execution of the Agreement.

Signatures

Execution of this Agreement and implementation of its terms by both parties provides evidence that both parties have reviewed this Agreement and agree to the terms and conditions for its implementation . This Agreement is effective upon the date of the last signature below.

Appendix A: Categorical Exclusion C1

Due to the limited scope of work for certain projects and based on ODOT's and FHWA's past experience with similar actions, these actions meet the intent of CEO regulation (Section 1508.4) and 23 CFR 771.117(a) and 771.117(c): some actions "...meet the criteria for CEs in the CEQ regulation and normally do not require any further NEPA approvals by the FHWA."

These projects must have independent utility and logical termini and must not exceed any of the C1 project impact thresholds listed below. Based on past experience, projects listed below will not result in any significant impacts to the human and/or natural environment. If environmental resources will be impacted, the level of documentation will need to be elevated. A C1 project form will be completed and signed by the DEC, the ORDC EC, or their designee for projects where no additional environmental verification is required. The DEC shall be ultimately responsible for ensuring that projects meet the criteria of a C1 action and do not require any further NEPA approvals by the Administration. The following project actions have been determined to meet the criteria of a C1 action as defined by ODOT and FHWA:

1. Activities which do not involve or lead directly to construction, such as planning and technical studies; 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. Examples include:
   • Study type projects (i.e. feasibility studies, etc.).
   • Projects that utilize no federal monies or require no federal actions (State-funded actions only}.*
   • Land donations to ODOT associated with ROW permits (non-NHS/non-Limited Access right-of-way). (Environmental Site Assessment issues will require coordination with ODOT-OES) (State-funded actions only).*
2. Approval of utility installations along or across a transportation facility. Examples include:
   • Utility tower lighting and street lighting projects.
3. Construction of bicycle and pedestrian lanes, paths, and facilities. Examples include:
   • Walkways, sidewalks, shared-use paths, and facilities, small passenger shelters, (i.e. construction of a bike path on an existing railroad bed, designations of certain highways as bike routes, painting of existing paved shoulders as bike lanes, ADA ramps, etc.) provided that no new disturbance will occur.
4. Activities included in the State's "highway safety plan" under 23 U.S.C. 402.
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. Examples include:
   • Maintenance and/or replacement of existing noise wall panels and/or posts
7. Maintenance and/or replacement of existing noise wall panels and/or posts
8. Landscaping. Examples include:
   • Herbicidal spraying,
   • Mowing or brush removal/trimming projects.
   • Beautification or facility improvement projects (i.e. landscaping, curb and gutter replacement, installation of park benches, decorative lighting, etc.).
9. 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. Examples include:
   • The installation or maintenance of signs, pavement markings/raised pavement markers/sensors, traffic calming activities, and/or new or replacement fencing (right-of-way, vandal, etc.).
   • General pavement marking or "line painting" projects.
10. 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):
    1. Emergency repairs under 23 U.S.C. 125; and
    2. 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:
       1. 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
       2. Is commenced within a 2-year period beginning on the date of the declaration.
11. Acquisition of scenic easements. Examples include:
    • Conservation/mitigation easements and fee simple.
    • Land acquisition by a public agency/public park entity for passive recreational use.
12. Determination of payback under 23 U.S.C. 156 for property previously acquired with Federal-aid participation.
13. Improvements to existing rest areas and truck weigh stations. Examples include:
    • Improvements to existing rest areas and weigh stations for minor maintenance (i.e. mill and resurfacing of existing parking areas). Projects involving major construction may require a higher level of documentation.
    • Truck stop electrification and construction/installation of alternative energy facilities (CNG, solar, etc.) at existing facilities
14. Ridesharing activities. Examples include:
    • Transportation corridor fringe parking facilities, park-and-ride lots and ridesharing activities
15. Bus and rail car rehabilitation.
16. Alterations to facilities or vehicles in order to make them accessible for elderly and handicapped persons.
17. Program administration, technical assistance activities, and operating assistance to transit authorities to continue existing service or increase service to meet routine changes in demand.
18. 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. Examples include:
    • Purchase or conversion of vehicles to alternative fuel uses (CNG, E-85, etc.)
19. Track and railbed maintenance and improvements when carried out within the existing right-of-way. Examples include:
    • Track and railbed acquisition.
20. Purchase and installation of operating or maintenance equipment to be located within the transit facility and with no significant impacts off the site.
21. (Not applicable to ODOT)
22. 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. Examples include:
    • Replacement of existing or installation of new traffic signals, flashing beacons, railroad warning devices and the installation of ITS system components
    • Upgrade of existing tower lighting to new technologies that ensure a lesser impact than the current system.
    • Implementation of other new safety or operations technologies (must be approved by OES).
23. 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 hat have not been disturbed or that are not maintained for transportation purposes are not in the existing operational right-of-way. Examples include:
    • Tower lighting within the existing operational right-of-way.
    • Guardrail installation and replacement (including median cable barriers) where roadway ditches and backslopes will not be relocated
    • Improvements to existing ODOT/County maintenance facilities.
    • Construction of new ODOT/County maintenance facilities within existing operational right-of-way.
    • Environmental mitigation activities within existing operational right-of-way.
    • Work on pedestrian and vehicle transfer structures and associated utilities, buildings, and terminals within existing operational right-of-way.
    • Construction of alternative energy facilities (fuel tank farms, wind turbines, etc.)
24. Projects that receive less than $5,000,000 of Federal funds or with a total estimated cost of not more than $30,000,000 and with Federal funds that comprise less than 15 percent of the total estimated project cost.
25. Localized geotechnical and other investigations 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. (This only applies to stand alone projects, not for environmental surveys being conducted as part of a project with an environmental document)
26. 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. Examples include:
    • Related environmental mitigation activities (wetland, stream, upland, etc.).
27. thru (28) Per 23 CFR 771(c)(26)-(28) and MAP-21, these items cannot be processed as a C1.
    • See C2 list in Appendix B.
28. 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.
29. 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.

C1 Project Impacts Thresholds

Projects that involve any impacts to the following will not be considered eligible for processing as a C1:

• Any acquisition of new temporary or permanent right-of-way for construction. All C1 projects must occur within existing right-of-way with the exception of work agreements.
• Any National Scenic River corridor impacts
• The need for any Waterway Permits
• Any impacts to state or federally threatened or endangered species
• Any impacts to wetlands
• Any impacts to historic properties or historic districts
• Any Section 4(f)/6(f) impacts
• Substantial traffic disruption, including the use of a temporary road, detour or ramp closure unless the use of such facilities satisfy the following conditions:
  • Provisions are made for access by local traffic and so posted;
  • Through-traffic dependent businesses will not be adversely affected;
  • The detour or ramp closure, to the extent possible, will not interfere with any local special event or festival;
  • The temporary road, detour or ramp closure does not substantially change the environmental consequences of the action;
  • There is no substantial controversy associated with the temporary road, detour, or ramp closure
• Minor public or agency controversy on environmental grounds (no opposition from any organized groups or agencies and no unresolved environmental coordination).

Appendix B: Categorical Exclusion C2

Due to the limited scope of work for certain projects and based on ODOT's and FHWA's past experience with similar actions, these actions meet the intent of CEO regulations (Section 1508.4), and 23 CFR 771.117(a), 771.117(c) and 771.117(d). Furthermore, these actions satisfy the criteria for CE Classification and do not involve significant environmental impacts. These projects must have independent utility and logical termini and must not exceed any of the C2 project impact thresholds listed below. They require a minimum level of documentation to ensure that no unusual circumstances are present (for example but not limited to: significant environmental impacts; substantial controversy on environmental grounds; significant impact on properties protected by Section 4(f) of the DOT Act or Section 106 of the National Historic Preservation Act; or inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to the environmental aspects of the action) that would warrant a higher level of NEPA documentation. Certain C1 actions that exceed C1 impact thresholds can be processed as a C2 only if they meet the criteria of a C2 action and if they do not exceed C2 impact thresholds. Those C1 actions that do not meet the criteria for C2 shall be processed at the next appropriate higher level (D listed projects). A C2 Environmental Form shall be completed by ODOT, with determination provided by the DEC or ORDC EC via signature.

The following project actions have been determined to meet the criteria of a C2 action as defined by ODOT and FHWA:

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. Examples include:
    • Joint or limited use of right-of-way where the proposed use would have minimal or no adverse social (including highway safety), economic or environmental impacts.
    • Installation of new noise walls and other new noise mitigation projects.
    • Construction of highway safety and truck escape ramps.
    • Construction of bicycle lanes and pedestrian walkways, sidewalks, shared-use paths, or facilities and trailhead parking that do not otherwise qualify for a C1 designation.
    • Beautification or facility improvement projects (i.e. landscaping, curb and gutter installation and replacement, ADA ramps/curb ramps, installation of park benches, decorative lighting, etc.).
    • Construction of alternative energy facilities (fuel tank farms, wind turbines, etc.)*
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. Examples include:
    • Lane reduction ("road diet") changes provided traffic analysis is completed.
    • Railroad projects that close at-grade crossings to improve safety or traffic operations.
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 23 CFR 771.117(e). Examples include:
    • Railroad projects that close or relocate at-grade crossings

C2 Project Impacts Thresholds

The environmental resources listed below require documentation to illustrate that no significant impacts will occur. The C2 classification cannot be applied to projects when the threshold is exceeded for each resource:

• No acquisition of more than a minor amount of right-of-way such as strip take or that would result in any residential or non-residential displacements.
• No need for a bridge permit from the U.S. Coast Guard, or an individual Section 404 permit under the Clean Water Act, or a Section 10 permit under the Rivers and Harbors Act of 1899
• No finding of adverse effect to any historic property considered under Section 106 of the National Historic Preservation Act
• No Section 4(f) use resulting in greater than de minimis impacts
• No finding of "may affect, likely to adversely affect" threatened or endangered species or critical habitat under the Endangered Species Act
• No construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions.
• No changes in access control.
• No 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)
• No construction activities in, across, or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.
• No minor public or agency controversy on environmental grounds (no opposition from any organized groups or agencies and no unresolved environmental coordination).
• If an EJ Analysis Report is required, the project must be processed as a D-level CE or higher level document.

ODOT will also consider the following areas for C2 projects. Documentation of these areas is
only required if there is a potential for impacts.

• Air Quality & Noise - Studies not required or no impacts will occur based on studies and coordination conducted
• Hazardous Materials - Limited to petroleum related Underground Storage Tanks (USTs) and/or releases
• Farmland - Not present or amount of ROW needed does not exceed criteria of the Farmland Memorandum of Understanding (MOU)

Appendix C: Categorical Exclusion - D-listed Actions

ODOT agrees to process D-listed actions pursuant to 23 CFR 771.117(d). Projects in this category must meet the intent of 23 CFR 771.117 (d), satisfy the criteria for CE Classification and do not involve significant environmental impacts. ODOT shall confirm proposed projects as D1 with the concurrence of either the DEC or the ORDC EC. The confirmation of D2 actions will be made by ODOT-OES. FHWA is responsible for the review and approval of D3 actions. D-listed projects must have independent utility and logical termini and must not exceed any of the D project impact thresholds listed below.

The following list of actions meet the criteria for a CE in the regulations (40 CFR 1508.4 and 23 CFR 771.117(a)). They require the submission of documentation demonstrating that the specific conditions or criteria are satisfied and that significant environmental effects will not result.

1. [Reserved]
2. [Reserved]
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.
    1. 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. 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.
    2. 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.
    Examples include:
    • ROW acquisition only for bikeway/pedestrian facility (no construction
13. Actions described in 23 CFR 771.117 (c)(26), (c)(27), and (c)(28) that do not meet the constraints listed in 23 CFR 771.117(e).
    • Project types that exceed thresholds in Appendix A
    • Project types that exceed thresholds in Appendix B

CE Action - D1 Thresholds

The DEC shall confirm that the project meets the criteria of a D1 action by ensuring:

• Only Minor right-of-way (ROW) acquisition involving a maximum of two relocations. (The context and intensity of the impact may require the CE to be elevated to the next higher level. Confirmation (by ODOT) shall be made that the acquisition will not result in significant impacts to the community or environment ).
• Waterways - Individual permit is acceptable but wetland impacts must be limited to less than 3 acres of Category 1 and 2 wetlands and/or up to 0.5 acres of Category 3 wetlands.
• No Section 106 impacts that would warrant the preparation of Archaeological Data Recovery recommendations.
• Section 4(f) impacts are limited to Programmatic or de minimis Section 4(f) impacts.
• That there is no public or agency controversy on environmental grounds (no opposition from organized groups or agencies and no unresolved environmental coordination).
• No impacts to federally threatened or endangered species/critical habitat that results in a Biological Opinion; or
• No disproportionately high and adverse impacts relative to low-income and/or minority populations.
• No substantial floodplain impacts
• If a Coast Guard Permit is required contact ODOT-OES for additional guidance regarding applicability of the Memorandum of Agreement Between The United States Coast Guard and The Federal Highway Administration To Coordinate and Improve Bridge Planning and Permitting, executed January 14, 2014.

CE Action - 02 Thresholds

It shall be confirmed by ODOT-OES that the project meets the criteria of a D2 action. The CE must include documentation demonstrating that the following concerns have been addressed.

• Right-of-way (ROW) acquisition involving a maximum of eight relocations. (The context and intensity of the impact may require the CE to be elevated to the next higher level. Confirmation shall be made to determine that the acquisition will not result in significant impacts to the community or environment.)
• Section 106 impacts, provided necessary documentation of consultation is included in the project files as required by 36 CFR Part 800.
• Wetland impacts of 5 acres or less. (Enough information to issue a wetland finding must be included in the CE documentation.)
• Substantial public or agency controversy on environmental grounds (strong opposition from organized groups or agencies). CE document must include documentation demonstrating that the public or agency concerns have been addressed.
• Programmatic or de minimis Section 4(f) impacts provided Programmatic Section 4(f) documentation has been approved by OES or de minimis Section 4(f) has been approved by FHWA.
• Individual Section 4(f) impacts/use as long as a draft of the 02 CE is provided to FHWA for review along with the Individual 4(f) packet.

02 projects cannot involve the following:

• Any disproportionately high and adverse impacts on low-income and/or minority populations.
• Quantitative PM 2.5 Hotspot Analysis.
• Quantitative MSAT Analysis.
• Unresolved substantial public or agency controversy on environmental grounds.
• Substantial/significant floodplain impact

CE Action - 03 Thresholds

If FHWA has an interest in the project for environmental reasons or if the project exceeds the thresholds listed for 02 actions but still meets the intent of 23 CFR 771.117(d), the CE will require the review and approval by FHWA.

In addition, for actions that meet the intent of 23 CFR 771.117(d) but that are not specifically listed above, OES may request FHWA to review and approve a CE for the project by providing FHWA with project and environmental analysis documentation and a certification stating that the project meets the criteria for a CE.